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EPA’S 2014 FINAL RULE: DISPOSAL OF COAL 

COMBUSTION RESIDUALS FROM ELECTRIC UTILITIES 

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 

JANUARY 22, 2015 

Serial No. 114–3 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

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 

(II) 

(III) 

C O N T E N T S 

Page 

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

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

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

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

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

Prepared statement .......................................................................................... 6 

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

opening statement ................................................................................................ 6 

Prepared statement .......................................................................................... 7 

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

New Jersey, opening statement .......................................................................... 9 

WITNESSES

Hon. Mathy Stanislaus, Assistant Administrator, Office of Solid Waste and 

Emergency Response, Environmental Protection Agency ................................. 10 

Prepared statement .......................................................................................... 13 

Answers to submitted questions ...................................................................... 131 

Thomas Easterly, Commissioner, Indiana Department of Environmental Management ................................................................................................................. 41 

Prepared statement .......................................................................................... 44 

Michael G. Forbeck, Environmental Program Manager, Bureau of Waste 

Management, Pennsylvania Department of Environmental Protection .......... 53 

Prepared statement .......................................................................................... 55 

Lisa D. Johnson, Chief Executive Officer and General Manager, Seminole 

Electric Cooperative, Inc. ..................................................................................... 61 

Prepared statement .......................................................................................... 63 

Thomas H. Adams, Executive Director, American Coal Ash Association ........... 70 

Prepared statement .......................................................................................... 72 

James R. Roewer, Executive Director, Utilities Solid Waste Activities Group .. 78 

Prepared statement .......................................................................................... 80 

Answers to submitted questions ...................................................................... 149 

Eric Schaeffer, Director, Environmental Integrity Project ................................... 86 

Prepared statement .......................................................................................... 88 

Frank Holleman, Senior Attorney, Southern Environmental Law Center ......... 95 

Prepared statement .......................................................................................... 97 

SUBMITTED MATERIAL

Letter of January 22, 2015, from Elizabeth R. Beardsley, Senior Policy Counsel, U.S. Green Building Council, to Mr. Shimkus and Mr. Tonko, submitted 

by Mr. Shimkus .................................................................................................... 115 

Letter of January 22, 2015, from Glynnis Collins, Executive Director, Prairie 

Rivers Network, to Mr. Shimkus and Mr. Tonko, submitted by Mr. 

Shimkus ................................................................................................................ 117 

Statement of American Forest & Paper Association, January 22, 2015, submitted by Mr. Harper .......................................................................................... 129 

(1) 

EPA’S 2014 FINAL RULE: DISPOSAL OF COAL 

COMBUSTION RESIDUALS FROM ELECTRIC 

UTILITIES 

THURSDAY, JANUARY 22, 2015 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY, 

COMMITTEE ON ENERGY AND COMMERCE, 

Washington, DC. 

The subcommittee met, pursuant to call, at 10:00 a.m., in room 

2123, 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, 

Upton (ex officio), Tonko, Schrader, Green, Doyle, McNerney, 

Ca ́ rdenas, and Pallone (ex officio). 

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

Deputy Communications Director; Sean Bonyun, Communications 

Director; Leighton Brown, Press Assistant; Jerry Couri, Senior Environmental Policy Advisor; Brad Grantz, Policy Coordinator, Oversight and Investigations; Charles Ingebretson, Chief Counsel, Oversight and Investigations; Dave McCarthy, Chief Counsel, Environment and the Economy; Tina Richards, Counsel, Environment; 

Chris Sarley, Policy Coordinator, Environment and the Economy; 

Jean Woodrow, Director of Information Technology; Joe Banez, 

Democratic Policy Analyst; Jeff Carroll, Democratic Staff Director; 

Jacqueline Cohen, Democratic Senior Counsel; Tiffany Guarascio, 

Democratic Deputy Staff Director and Chief Health Advisor; Ryan 

Schmidt, Democratic EPA Detailee. 

Mr. SHIMKUS. We want to call the hearing to order. 

And I would like to recognize myself for 5 minutes for an opening 

statement. 

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

We welcome each of our witnesses and appreciate your willingness to be here today to talk about the final coal ash rule released 

by EPA in December. 

We are eager to hear from the administration. We hope Mr. 

Stanislaus will be able to provide some clarification about the implementation of the final rule and, also, answer some questions and 

address some concerns. 

We will hear from a number of stakeholders regarding their initial impressions of the final rule and any concerns they may have, 

2 

and we will also discuss the final rule in comparison to the legislation we considered through this committee to the floor of the House 

the last couple of Congresses. 

First, I would like to commend the EPA for getting the final rule 

out in time to meet the court-ordered deadline. Weighing in at over 

700 pages, I am sure that that was no small undertaking. 

I would also like to acknowledge that, in finalizing the rule, the 

Agency faced a genuine dilemma, create an enforceable permit program for coal ash under subtitle C and designate coal ash as a hazardous waste or promulgate self-implementing standards for managing coal ash as nonhazardous waste under subtitle D. 

I am pleased to note that EPA chose to regulate coal ash under 

subtitle D, which will help ensure that coal ash continues to be 

beneficially reused like this. 

However, because of the way subtitle D is currently drafted, EPA 

did not have the authority it needed to create a permit program for 

coal ash. 

Instead, the final rule lays out an entirely self-implementing program that will be enforced through citizen suits and will unavoidably lead to an unpredictable array of regulatory interpretations as 

judges throughout the country are forced to make extremely technical compliance decisions that would be better left to a regulatory 

agency. 

The final rule also sets up a dual regulatory program. EPA 

strongly encourages—and I quote—‘‘for States to incorporate the 

requirements into their solid waste management plan.’’ 

However, as currently drafted, RCRA does not allow State coal 

ash programs to operate in lieu of the Federal requirements in the 

final rule, meaning, even if States adopt the Federal requirements 

or requirements that are more stringent, the Federal requirements 

remain in place and utilities must comply with both the State and 

Federal requirements. 

There are some other provisions in the rule that are potentially 

troublesome and that we hope to discuss today, including the retroactive application of location or siting restrictions and the requirements that unlined impoundments that exceed a groundwater protection standard close with no opportunity to remedy the problem 

through corrective action. 

Last, but not least, EPA has removed the flexibility of the correction action program as it exists for other programs under subtitle 

D. It is understandable that the Agency may feel the need to tighten certain restrictions because the rule is self-implementing. 

However, by removing flexibility regarding the boundary which 

compliance must be demonstrated and flexibility to determine the 

appropriate cleanup levels and eliminating cost as a factor that can 

be considered in completing corrective action, the final rule jeopardizes the future of risk-based cleanup decisions at coal ash disposal units. 

The removal of this flexibility also creates uncertainty with respect to ongoing cleanups at coal ash disposal facilities. 

While we acknowledge the amount of time and effort EPA put 

into drafting the final rule, because of the significant limitations of 

the rule, we still believe that a legislative solution might be required that would set minimum Federal standards and allow 

3 

States to develop enforceable permit programs to implement the 

standards, which we think could still be the best approach in dealing with coal ash. 

I can assure you that we intend to be thoughtful with respect to 

the requirements in the final rule and how they differ from the legislation that we moved through this committee and the House during the last Congress, and we will update the legislation as necessary. 

As Mr. Stanislaus pointed out when he spoke with us last time, 

there are some important issues that our previous bills did not address, in particular, regulation of inactive impoundments. We will 

address these units as we move forward. 

I would like to thank the administration for all the cooperation 

we have received to date on this issue. EPA has been constructive 

and helpful both with our legislative efforts during the last Congress and recently as we worked through the issues with the final 

rule. We appreciate all our witnesses for being here. 

I would also thank Mr. McKinley, who has been a driving force 

behind moving this legislation and for his continued leadership on 

this issue. 

And I would like to express my appreciation for fellow committee 

Members for sticking with us as we continue to push forward to ensure that effective regulation of coal ash. 

[The prepared statement of Mr. Shimkus follows:] 

PREPARED STATEMENT OF HON. JOHN SHIMKUS

We welcome each of our witnesses and appreciate your willingness to be here 

today to talk about the final coal ash rule released by EPA in December. We are 

eager to hear from the administration and we hope that Mr. Stanislaus will be able 

to provide some clarification about the implementation of the final rule and also answer some questions and address some concerns. We will hear from a number of 

stakeholders regarding their initial impressions of the final rule and any concerns 

they may have and we will also discuss the final rule in comparison to the legislation considered by the committee in the last two Congresses. 

First, I would like to commend EPA for getting the final rule out in time to meet 

the court-ordered deadline—weighing in at over 700 pages, I am sure that was no 

small undertaking. I would also like to acknowledge that in finalizing the rule the 

Agency faced a genuine dilemma: create an enforceable permit program for coal ash 

under Subtitle C and designate coal ash as a hazardous waste, or promulgate 

selfimplementing standards for managing coal ash as a non-hazardous waste under 

Subtitle D. I am pleased to note that EPA chose to regulate coal ash under Subtitle 

D which will help ensure that coal ash continues to be beneficially reused. However, 

because of the way Subtitle D is currently drafted, EPA did not have the authority 

it needed to create a permit program for coal ash. Instead, the final rule lays out 

an entirely self-implementing program that will be enforced through citizen suits 

and will unavoidably lead to an unpredictable array of regulatory interpretations, 

as judges throughout the country are forced to make extremely technical compliance 

decisions that would be better left to a regulatory agency. 

The final rule also sets up a dual regulatory program. EPA ‘‘strongly encourages’’ 

the States to incorporate the requirements into their solid waste management plans. 

However, as currently drafted, RCRA does not allow State coal ash programs to operate in lieu of the Federal requirements in the final rule. Meaning, even if States 

adopt the Federal requirements or requirements that are more stringent, the Federal requirements remain in place and utilities must comply with both the State 

and Federal requirements. 

There are some other provisions in the final rule that are potentially troublesome 

and that we hope to discuss today, including the retroactive application of location 

or siting restrictions and the requirement that unlined impoundments that exceed 

a groundwater protection standard close with no opportunity to remedy the problem 

through corrective action. 

4 

Last but not least, EPA has removed the flexibility of the corrective action program as it exists for other programs under Subtitle D. It is understandable that the 

Agency may feel the need to tighten certain restrictions because the rule is self-implementing. However, by removing flexibility regarding the boundary within which 

compliance must be demonstrated and flexibility to determine the appropriate cleanup levels, and eliminating cost as a factor that can be considered in completing corrective action—the final rule jeopardizes the future of risk-based cleanup decisions 

at coal ash disposal units. The removal of this flexibility also creates uncertainty 

with respect to ongoing cleanups at coal ash disposal facilities. 

While we acknowledge the amount of time and effort EPA put into drafting the 

final rule, because of the significant limitations of the rule we still believe that a 

legislative solution that sets out minimum Federal requirements and allows the 

States to develop enforceable permit programs to implement the standards, is the 

best approach to dealing with the regulation of coal ash. I can assure you that we 

intend to be thoughtful with respect to the requirements in the final rule and how 

they differ from the legislation that we moved through this committee and the 

House during the last Congress and we will update the legislation as necessary. As 

Mr. Stanislaus pointed out when he spoke with us last time, there are some important issues that our previous bills did not address—in particular, regulation of inactive impoundments—we will address these units as we move forward. 

I would like to thank the administration for all of the cooperation we have received to date on this issue. EPA has been constructive and helpful both with our 

legislative efforts during the last Congress and recently as we work through the 

issues with the final rule. We appreciate all of our witnesses for being here, I would 

like to thank Mr. McKinley for his continued leadership on this issue, and I would 

like to express my appreciation to my fellow committee members for sticking with 

us as we continue to push forward to ensure the effective regulation of coal ash. 

Mr. SHIMKUS. With that, I yield back my time. 

And I recognize Mr. Tonko, the ranking member of the subcommittee, for 5 minutes. 

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

Mr. TONKO. Thank you, Chair Shimkus. 

And on the outset, let me just indicate how pleased I am to be 

able to work as ranking member on this subcommittee with you. 

I appreciate the fact that our respective parties have asked us to 

lead the efforts with what I think is very important work that 

comes under the overview of this subcommittee. 

So I believe we will have a very productive session, and I look 

forward to it. So congratulations on your continued leadership. 

Good morning. And, again, thank you, Chair Shimkus, for holding this hearing on the Environmental Protection Agency’s final 

rule to establish minimum national standards for the disposal of 

coal ash. 

Over the years, communities have been subjected to risks due to 

air and water pollution associated with inadequate management of 

coal ash disposal. Spills resulting from coal ash impoundment failures have polluted water supplies, destroyed private and public 

properties, and resulted in lengthy and expensive cleanup efforts. 

I am certain that the residents of these unfortunate communities 

feel this rule is long overdue. 

EPA is to be commended for its extensive process of public engagements on this issue. The Agency sorted through over 450,000 

public statements submitted during the public comment period on 

the rule and held eight public hearings in communities across our 

country. 

EPA’s rule is responsive to industry concerns that classifying coal 

ash as hazardous waste would harm coal ash recycling efforts that 

5 

utilize coal ash in new materials and new products, and it is responsive to the concerns of public health and environmental advocates because, for the first time, we have Federal standards for coal 

ash disposal sites that will set a floor of protection for all communities. 

Of course, the rule from either vantage point is not perfect. 

Given the disparate opinions on what would constitute appropriate 

Federal regulation of coal ash disposal, that is not too surprising. 

The rule has quieted the debate on this issue somewhat. But, of 

course, there are still differing opinions about how coal ash should 

be classified and regulated, and we will hear some of these opinions 

here today. 

I would have preferred to see a stronger regulation, given the 

substantial risks and tremendous damage and cost of recent spills, 

especially the one experienced in Tennessee in 2008. But with this 

rule in place, States and utilities can begin to address deficiencies 

in disposal operations. Communities will gain access to information 

about coal ash disposal facilities and have a benchmark from which 

to compare performance against expectations. 

Now that the rule is final, the work of implementation begins. 

Ultimately, that is the only real test of whether this rule takes the 

correct approach or not, and it will take some time to evaluate 

whether its implementation will achieve the goals of safe management of coal ash disposal. I believe it is this subcommittee’s job to 

continue in its oversight of this issue and others going forward. 

We will have witnesses today who will advocate for changes to 

this regulation or to the underlying law, and I think that either approach is premature. I would observe that changes in regulation or 

in law do indeed take a long time and hitting the restart button 

now would only lead to continued uncertainty and risk. We have 

had far too much of those already. 

This rule was years in the making. And, as I said earlier, I would 

have preferred to see a stronger regulation, but I am not willing 

to second-guess an approach that has yet to be implemented or 

evaluated and one that rests on the extensive public engagement 

and negotiating process and years of work invested by the interested parties and the Agency. This rule should move forward. We 

should give this approach an opportunity to work and monitor it 

closely to evaluate its effectiveness. 

So let’s get on with it. As we go forward, we will see how well 

this approach works. We certainly retain all options for action if it 

does not. 

I thank all of our witnesses for appearing today and for their invaluable contributions to the public process that moved this rule 

forward. 

Again, I thank our chair, Chair Shimkus, for calling this important hearing. I look forward to working with you on this issue and 

the other issues in this jurisdiction of our subcommittee as we 

begin our work in this 114th Congress. 

And, with that, I yield back. 

[The prepared statement of Mr. Tonko follows:] 

6 

PREPARED STATEMENT OF HON. PAUL TONKO

Good morning and thank you, Chairman Shimkus for holding this hearing on the 

Environmental Protection Agency’s final rule to establish minimum national standards for the disposal of coal ash. 

Over the years, communities have been subjected to risks due to air and water 

pollution associated with inadequate management of coal ash disposal. Spills resulting from coal ash impoundment failures have polluted water supplies, destroyed private and public property, and resulted in lengthy and expensive clean-up efforts. I 

am certain the residents of these unfortunate communities feel this rule is long 

overdue. 

EPA is to be commended for their extensive process of public engagement on this 

issue. The Agency sorted through over 450,000 public submitted during the public 

comment periods on the rule and held eight public hearings in communities across 

the country. 

EPA’s rule is responsive to industry concerns that classifying coal ash as hazardous waste would harm coal ash recycling efforts that utilize coal ash in new materials and products. And, it is responsive to the concerns of public health and environmental advocates. Because, for the first time, we have Federal standards for coal 

ash disposal sites that will set a floor of protection for all communities. 

Of course, the rule from either vantage point is not perfect. Given the disparate 

opinions on what would constitute appropriate Federal regulation of coal ash disposal, that is not too surprising. The rule has quieted the debate on this issue somewhat, but of course there are still differing opinions about how coal ash should be 

classified and regulated. And, we will hear some of these opinions today. 

I would have preferred to see a stronger regulation given the substantial risks 

and tremendous damage and costs of recent spills, especially the one experienced 

in Tennessee in 2008. But, with this rule in place States and utilities can begin to 

address deficiencies in disposal operations. Communities will gain access to information about coal ash disposal facilities and have a benchmark from which to compare 

performance against expectations. 

Now that the rule is final, the work of implementation begins. Ultimately, that 

is the only real test of whether this rule takes the correct approach or not. And, 

it will take some time to evaluate whether its implementation will achieve the goals 

of safe management of coal ash disposal. I believe it is this subcommittee’s job to 

continue in its oversight of this issue going forward. 

We will have witnesses today who will advocate for changes to this regulation or 

to the underlying law. I think either of these actions is premature. I would observe 

that changes in regulation or in law take a long time. And, hitting the restart button now will only lead to continued uncertainty and risk. We have had far too much 

of those already. 

This rule was years in the making. As I said earlier, I would have preferred to 

see a stronger regulation. But I am not willing to second guess an approach that 

has yet to be evaluated. And one that rests on the extensive public engagement and 

negotiation process and years of work invested by the interested parties and the 

Agency. This rule should move forward. We should give this approach an opportunity to work and monitor it closely to evaluate its effectiveness. 

So, let’s get on with it. As we go forward we will see how well this approach 

works. We certainly retain all options for action if it does not. 

I thank all our witnesses for appearing today and for their invaluable contributions to the public process that moved this rule forward. And, thank you again, 

Chairman Shimkus for calling this important hearing. I look forward to working 

with you on this issue and the other issues in the jurisdiction of our subcommittee 

as we begin our work in the 114th Congress. 

Mr. SHIMKUS. I want to thank my colleague for his kind words. 

And now I would like to yield 5 minutes to the chairman of the 

full committee, Mr. Upton. 

OPENING STATEMENT OF HON. FRED UPTON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN 

Mr. UPTON. Thank you, Mr. Chairman. 

Today our multiyear quest to solve the coal ash issue continues 

in this new Congress. And I want to particularly thank all of our 

7 

witnesses for appearing today and welcome back a frequent guest, 

EPA Assistant Administrator Stanislaus. 

You have worked, clearly, long and hard on coal ash and have 

always engaged with us very constructively, and we appreciate 

that. 

Navigating this issue is a tough job and, in our view, much more 

difficult by gaps in current law. Most of us can agree that coal ash 

does not warrant regulation as a hazardous material, and I am 

glad that EPA agrees. But there is no authority in the law that allows for a State-based permitting program for nonhazardous waste. 

When the Federal court set a December 2014 deadline for EPA 

to publish a final rule for coal ash, we looked at the legal constraints and questioned whether EPA’s rule would be the last word 

on the subject. 

We, along with some of the witnesses who we will hear from 

today, are still asking the same thing, and we are left even with 

more questions: If we don’t legislate, how will EPA’s rule be implemented and enforced? Will there be a dual program in each State, 

one Federal and one State-based? Can we expect a dramatic increase in citizen suits? 

The current regulatory path contains risks for all sides and could 

lead to even greater uncertainty and expense. Mr. McKinley’s bipartisan bill in the last Congress went a long way towards solving 

the challenges with coal ash management. The legislation recognized that States like Michigan were already running successful 

disposal programs, and it allowed States to continue to use their 

localized regulatory expertise. 

I appreciated EPA’s input in our legislative process. The Agency 

acknowledged some of the advantages of our legislation and asked 

for some changes, many of which we made to the bill. Our goal is 

to get the job done right, and we are willing to discuss further 

changes to the legislation to ensure that we have a workable solution in place. 

We want to continue working with Members in both bodies, in 

both parties, to achieve the best overall outcome. We will continue 

to work with our stakeholders, the States, the utilities, co-ops, coal 

ash recyclers, and other advocates. 

Our goals are threefold: Put the right protections in place; put 

coal ash generators and users straightforward standards and procedures to follow; and grant States the authority that they need to 

implement and enforce Federal standards while taking into account 

distinct local conditions. 

Mr. Chairman, with all of the innovative ideas and continued refinement that has gone into legislation over the last couple years, 

I welcome the opportunity to once again listen to stakeholders as 

we chart a path forward. 

PREPARED STATEMENT OF HON. FRED UPTON

Today, our multiyear quest to solve the coal ash issue continues in this new Congress. 

I want to thank all of our witnesses for appearing today and welcome back a frequent guest, EPAAssistant Administrator Stanislaus. Mathy, you have worked long 

and hard on coal ash and have always engaged with us very constructively. Navigating this issue is a tough job, and in our view, made more difficult by gaps in 

current law. 

8 

Most of us can agree that coal ash does not warrant regulation as a hazardous 

material, and I am glad EPA agrees, but there is no authority in the law that allows 

for a State-based permitting program for nonhazardous waste. 

When the Federal court set a December 2014 deadline for EPA to publish a final 

rule for coal ash, we looked at the legal constraints and questioned whether EPA’s 

rule would be the last word on the subject. We, along with some of the witnesses 

who we will hear from today, are still asking the same thing and are left with even 

more questions. 

If we don’t legislate, how will EPA’s rule be implemented and enforced? Will there 

be a dual program in each State, one Federal and one State-based? Can we expect 

a dramatic increase in citizen suits? 

The current regulatory path contains risks for all sides, and could lead to even 

greater uncertainty and expense. 

Mr. McKinley’s bill in the last Congress went a long way toward solving the challenges with coal ash management. The legislation recognized that States like Michigan were already running successful disposal programs, and it allowed States to 

continue to use their localized regulatory expertise. 

I appreciated EPA’s input in our legislative process. The Agency acknowledged 

some of the advantages of our legislation and asked for some changes, many of 

which we made to the bill. 

Our goal is to get the job done right, and we are willing to discuss further changes 

to the legislation to ensure we have a workable solution in place. We want to continue working with members in both bodies and both parties to achieve the best 

overall outcome. 

We will also continue to work with our stakeholders: the States, the utilities and 

co-ops, the coal ash recyclers, and other advocates. 

Our goals are threefold: put the right protections in place; give coal ash generators and users straightforward standards and procedures to follow; and grant States 

the authority they need to implement and enforce Federal standards while taking 

into account distinct local conditions. 

Mr. Chairman, with all of the innovative ideas and continued refinement that has 

gone into legislation over the last 4 years, I welcome the opportunity to once again 

listen to stakeholders as we chart the path forward. I look forward to the testimony 

and to our members’ questions. 

Mr. UPTON. I yield the balance of my time to Mr. McKinley. 

Mr. MCKINLEY. Thank you, Mr. Chairman. 

Job creators detest uncertainty. And let’s make one thing clear: 

This proposed regulation does not provide certainty. Now, in the 

spirit of the Super Bowl upcoming, let me explain with an analogy. 

If a quarterback knew what defense was going to be put up 

against him, he knew with certainty what defense, he would 

logarithmically likely be able to move the ball down the field much 

more easily if he knew with certainty what he faces. And this is 

what applies to this regulation. It provides no certainty to the business community. 

Let me give you three examples. And you have already heard our 

two chairmen talk about that. But let me reinforce it again. The 

rule results in potentially conflicting Federal and State requirements. Federal judges in neighboring jurisdictions could make contradictory decisions regarding compliance. 

But more damaging is on page 18 of the rule. It says—and I 

quote—‘‘This rule defers a final determination until additional information is available.’’ That is not acceptable. How many times 

must there be a final determination that coal ash is not hazardous 

and be handled in a different way? 

In the 112th and the 113th Congresses, the House passed legislation codifying the conclusions that were rendered in the 1993 and 

2000 reports offered by the EPA. We are trying to develop certainty, certainty not just to the business community, but to the 

health of the people we are trying to protect. 

9 

In fact, Mr. Stanislaus—and I thank you very much because we 

have had a very good working relationship—you said in 2013 that 

the legislation that we passed was something that you could work 

with. That is what we want to keep working with. We want to keep 

that relationship going to come up with certainty how that could 

go. 

So the bottom line, unfortunately, is we have a regulation that 

doesn’t provide certainty. It would be wise for the committee to 

once again pass the legislation that we have done over the last 2 

years and bring closure to this issue. Thank you. 

And I yield back my time. 

Mr. SHIMKUS. The gentleman’s time expired. 

The Chair now recognizes the ranking member of the full committee, Mr. Pallone, for 5 minutes. It was nice saying that. So welcome. 

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

Mr. PALLONE. Thank you, Mr. Chairman. 

I also wanted to start by congratulating my colleague from New 

York, Mr. Tonko, on continuing his role as ranking member of this 

important subcommittee. 

And I think I can speak for all the Members on our side of the 

aisle when I say that we appreciate your expertise and leadership 

on environmental issues, Paul. 

Let me just turn to the topic today. I would like to commend the 

EPA for finalizing national criteria for coal ash disposal. These criteria will for the first time provide the framework for addressing 

this serious environmental problem. 

Unsafe disposal of coal ash poses serious threats to human 

health and the environment. The three primary risks are groundwater contamination, fugitive dust, and catastrophic failure of wet 

impoundments. And I am happy to say that each of these risks is 

addressed in the EPA’s new rule. 

EPA first determined that national disposal criteria were needed 

for coal ash in the year 2000. That was 15 years ago now. And the 

need for this rule has only become clearer. 

We now have 157 documented cases of damage to human health 

in the environment from unsafe coal ash disposal. It is possible 

that, with the monitoring required under this rule, that number 

will only go up because more contamination will be detected. 

This rule is the product of a robust public process, including field 

hearings and several rounds of public comment. It reflects the 

input of over 450,000 commenters, including States, industry 

groups, environmental groups, and individual concerned citizens, 

and it addresses many of the concerns that this subcommittee has 

heard in past hearings. 

By proceeding under subtitle D, EPA addressed concerns about 

stigma raised by industry. By laying out a framework for States to 

incorporate the regulations into existing programs, EPA addressed 

State concerns. And by requiring public reporting of monitoring 

data and addressing some legacy sites, EPA addressed many concerns raised by environmental advocates. 

10 

We will hear today that not everyone is satisfied with the rule. 

Certainly many in the environmental community argue that only 

a subtitle C rule would protect human health. And it is possible 

that the self-implementing nature of the rule could lead to inconsistent compliance. 

But, as a whole, the rule is an important step forward. The rule 

will offer important protections for human health in the environment, including many important protections that were not part of 

past legislative proposals. 

Now, as we look ahead in this subcommittee, I think the publication of this final rule changes our role. We are no longer called 

upon to set national criteria and statute because those criteria 

have been set through a robust transparent process. 

Instead, we will have to monitor compliance and conduct oversight of the rule’s novel implementation structure, and I hope we 

can conduct that oversight in a bipartisan manner. 

Again, I applaud EPA for their hard work and look forward to 

the testimony. 

And I would yield back, Mr. Chairman. 

Mr. SHIMKUS. The gentleman yields back his time. 

And I want to thank my colleagues again. 

Now I would like to recognize Mathy Stanislaus from the EPA. 

Thank you for coming. I think you heard from a lot of Members 

of—you know, this is one issue we really appreciate the work that 

we have done together, and we look forward to working with you 

more. 

You are recognized for 5 minutes. 

STATEMENT OF HON. MATHY STANISLAUS, ASSISTANT ADMINISTRATOR, OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, ENVIRONMENTAL PROTECTION AGENCY 

Mr. STANISLAUS. Good morning, Chairman Shimkus, Ranking 

Member Tonko, and members of the subcommittee. 

I am Mathy Stanislaus, U.S. EPA Assistant Administrator for 

the Office of Solid Waste and Emergency Response. And I and my 

staff have had the privilege of working the last 5 1⁄2 years to actually get it right in terms of putting a rule in place that is protective 

and address the risks that we have identified. 

On December 19, as Members know, EPA finalized the coal ash 

rule. This rule established the first ever national rule for the safe 

disposal of coal combustion residuals in landfill and surface impoundments. 

The 2008 catastrophic failure of the CCR impoundment at Tennessee Valley’s Kingston facility, EPA’s risk assessment, and the 

157 cases in which CCR mismanagement has caused damage to 

human health and the environment clearly demonstrate that improper management of coal ash poses an unacceptable risk to 

human health and the environment. 

We believe this groundbreaking rule is a culmination of extensive 

studies on the effects of coal ash on the environment and public 

health. The rule establishes technical requirements for landfills 

and surface impoundments under subtitle D of the Resource Conservation and Recovery Act. 

11 

In developing this final rule, EPA carefully evaluated more than 

450,000 comments, testimony from eight public hearings, supplemented by three separate public comments on data, which is the 

foundation of the rule. The 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 protects groundwater by requiring utilities to conduct 

groundwater monitoring, immediately cleaning up contaminated 

groundwater, closing unlined impoundments that are contaminating groundwater, and requiring the installation of liners for new 

surface impoundments and landfills. 

It protects communities against catastrophic failure of impoundments by requiring specific design criteria, inspections and engineering testing, and to retrofit or close impoundments that fail 

testing. It protects communities from CCR dust by requiring an air 

control plan. 

Further, the rule provides States and communities the information they need to fully engage in the rule’s implementation. The 

rule requires utilities to post information on all aspects of its compliance with the rule on publicly available Web sites to help ensure 

States and the public have access to information to monitor utilities’ compliance with the rule. 

The rule has been designed to provide electric utilities and independent power producers generating coal ash with a practical approach for safe coal ash disposal and has established reasonable 

implementation timelines for this to occur. 

We strongly recognize the important role that our State partners 

play in implementation and ensuring compliance with environmental regulations. EPA is committed to working closely with our 

State partners on rule implementation. 

And as a major component of this rule, States can align their 

programs with the Federal rule by utilizing the solid waste management plan in process and submit revisions limited to incorporating the coal ash Federal requirements for EPA for approval. 

The solid waste management plan can demonstrate how the 

State program has incorporated the rule’s minimum criteria utilizing State permit or other processes and can highlight those areas 

where State regulations want to be more stringent or otherwise go 

beyond the Federal minimum criteria. 

EPA will be working with the States to develop a template for 

a streamlined process for developing and approving a solid waste 

management plan. Of course, the final rule does not preclude a 

State from adopting more stringent requirements, should it choose 

to do so. 

I should note that States will have adequate time to develop the 

solid waste management plan and seek EPA’s approval and conduct the necessary public process because the major elements of 

the rule is at least 18 months from today. 

Further, the rule supports the sound beneficial use of coal ash. 

The final rule does not change the current Bevill exemption nor 

regulate coal ash that are beneficially used. The rule distinguishes 

between beneficial use and disposal to provide certainty to the regulated community and to users of coal ash. 

12 

We have separately established methodology for coal ash users to 

analyze their products, and we have, in fact, applied that methodology to demonstrate that in concrete and wallboard—that we have 

confirmed its continued use. 

I will close by noting that we believe this is a tremendous milestone to protect communities and the environment in which we live 

and work, and EPA is committed to working with our State partners, local communities, and utilities on the implementation. And 

I look forward to your questions. 

[The prepared statement of Mr. Stanislaus follows:] 

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15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

Mr. SHIMKUS. Thank you very much. 

Now I would like to recognize myself for 5 minutes for an opening round of questions. 

So, again, numerous times we appreciate your good effort and 

good work, and we look forward to working with you. But just to 

get some clarification—and we have got your partner sitting behind 

you who will be also working within their States. 

Under the final rule, no permits will be issued. Isn’t that correct? 

Mr. STANISLAUS. Well, what we have identified, utilizing the 

solid waste management planning program, is the States can build 

a permitting program and submit that to EPA to be approved. 

Mr. SHIMKUS. They can. But there is no requirement to. There 

is no permitting process in the new rule. 

Mr. STANISLAUS. That is true. But once the solid waste management plan is approved, there will be a singular point of compliance. 

So utilities can then implement through the State program, and 

we have made clear in the preamble that compliance will demonstrate compliance with the Federal—— 

Mr. SHIMKUS. And you understand why we are asking that, because the legislation we moved last cycle said Federal standards, 

State implementation, permitting process where there is certainty. 

And I think it goes to Mr. McKinley’s point. 

Isn’t it true that States are not required to adopt or implement 

the requirements? 

Mr. STANISLAUS. Well, clearly they are not required. But the 

States have clearly called on us to figure out ways of aligning the 

Federal requirements with the State program. 

That is why we have established a solid waste management plan 

and program, so States can, in fact, integrate the minimum Federal 

requirements that we have established within their State program, 

and seek EPA’s approval of that. And so that will establish the 

alignment from our perspective. 

Mr. SHIMKUS. And neither EPA nor the States can directly enforce requirements in the final rule. Isn’t that correct? 

Mr. STANISLAUS. That is correct. So we believe, again, utilizing 

the State solid waste management plan, the States can then go forward and implement these requirements once a State solid waste 

management plan is approved, or independently States and citizens 

can implement requirements of the rule. 

Mr. SHIMKUS. Yes. And the only enforcement mechanism under 

the recently reduced rule is through citizen suits and more litigation. Is that correct? 

Mr. STANISLAUS. Well, we actually believe, again, that the State 

solid waste management plan, when approved, will not result in excessive litigation. There will be litigation to enforce in those circumstances where States and others are deemed not to be compliant. 

Mr. SHIMKUS. You are more optimistic than I am. I can guarantee you that. 

Even if States adopt the Federal rule, utilities will have to comply with the State requirements and the Federal rule. Is that correct? 

Mr. STANISLAUS. Well, the rule is directly applicable to utilities. 

But, again, getting back to State solid waste management plan, 

25 

there is an opportunity for the States, as the States have sought, 

to align and integrate the Federal minimum requirements into 

their program and seek EPA’s approval for that. 

Mr. SHIMKUS. But you understand the concern in this line of 

questioning is it is kind of vague: ‘‘They can’’ or ‘‘They might,’’ ‘‘We 

kind of hope they do.’’ There is an expectation that they probably 

will, but there is really not a lot of clarity. 

And then the other concern is, if you are relying on citizen 

suits—or citizen suits will come. Right? There is no doubt that they 

will come. 

And if they are regionally directed, then you could have multiple 

standards throughout the country which aren’t the same, based 

upon the litigation and the rulings in these different courts. 

Isn’t that a concern? 

Mr. STANISLAUS. Well, actually, we don’t anticipate that. The 

rule is pretty specific in establishing minimum Federal requirements for protection of groundwater, for preventing catastrophic 

failure, for addressing dust. 

And so if you move forward in implementing that and the States 

can integrate that within their State program and EPA approves 

the State solid waste management plan, we think that there is 

going to be national consistency. 

Mr. SHIMKUS. You are more optimistic than I am. And you mentioned the preamble, so I am going to kind of address it. 

If a regulated facility complies with a State requirement that is 

more stringent and, therefore, is not the same as the requirement 

in the final rule, will the regulated entity also have to comply with 

the Federal requirement? 

Mr. STANISLAUS. So I just want to clarify. So if a State adopts 

more stringent—adds to the Federal requirement—— 

Mr. SHIMKUS. Correct. 

Mr. STANISLAUS [continuing]. Then gets an approval from EPA 

through a State solid waste management plan, the utilities will 

then have to comply with fully the State requirements. 

And so that will demonstrate compliance with the Federal requirements and, also, additional requirement that the State chooses to add. 

Mr. SHIMKUS. Yes. And I think we are going to hear testimony 

in the next panel that they don’t believe that that is true, that 

there will be a two-fold process, the Federal Government and the 

State EPA. And that is one of the concerns that we have with the 

rule. So good people can agree to disagree. 

And I now would like to recognize the ranking member of the 

subcommittee, Mr. Tonko, for 5 minutes. 

Mr. TONKO. Thank you. 

Mr. Stanislaus, good morning, and thank you for joining us. 

Unsafe disposal of coal ash poses serious threats to human 

health and to our environment. That is why I am pleased that EPA 

has finally set national criteria for State disposal of coal ash. For 

the first time utilities and States have clear requirements to indeed 

follow. 

As I stated earlier, I would have preferred a stronger rule. Public 

health and environmental advocates have indicated that they have 

26 

preferred a stronger rule. I tend to agree. But I do believe the rule 

includes some important safeguards. 

I appreciate you being here to testify. And I would like to go over 

some of the most important protections offered by the rule with 

you. 

To ensure that disposal sites are not located in dangerous areas, 

the rule puts in place five restrictions. And I would like to give you 

my read of those restrictions and see if I am interpreting them correctly. 

Structures generally will not be allowed close to aquifers and 

wetlands within fault areas and seismic impact zones and in unstable areas. Is that indeed correct? 

Mr. STANISLAUS. Well, that is correct. So they are going to have 

do an analysis with respect to those location requirements and 

demonstrate whether they can safely operate and putting engineering measures to prevent any impacts. 

Mr. TONKO. OK. Thank you. 

And previous legislative proposals we have seen would have included only two of these five restrictions and included a smaller aquifer buffer. I appreciate that the final rule includes these protective requirements. 

Next. To protect air quality, the new final rule will require facilities to develop dust control plans and prevent blowing by wetting 

or covering the dust or erecting wind barriers. Is that indeed correct? 

Mr. STANISLAUS. That is correct. 

Mr. TONKO. Thank you. 

To detect groundwater contamination, the rule includes requirements for at least one upgradient well and three downgradient 

wells. Is that correct? 

Mr. STANISLAUS. Yes. 

Mr. TONKO. Why did the Agency find it important to specify a 

minimum number of wells? 

Mr. STANISLAUS. Well, this is standard protocol to make sure 

that we fully understand the direction and potential impact to 

groundwater. 

Mr. TONKO. OK. Lastly, I would like to turn to the public disclosure requirements in this rule. 

The rule establishes a national floor for what information will be 

made publicly available and for how that will be done. Utilities will 

have to maintain pages on their Web sites that document their 

compliance with a wide range of the criteria in the rule, including 

location, design, and groundwater monitoring. Is that correct? 

Mr. STANISLAUS. That is correct. 

Mr. TONKO. These disclosure provisions in the rule will be essential to ensuring compliance and promoting transparency for communities. Although a subtitle C rule might have offered more protection and more direct enforcement, this rule will protect human 

health in the environment and goes beyond past bills. 

I do want to commend EPA for finalizing this rule and for the 

Agency’s conduct of the extensive public engagement in the course 

of this development. 

And, with that, I thank you for appearing here this morning. 

And I yield back. 

27 

Mr. SHIMKUS. The gentleman yields back his time. 

Just a notification to my colleagues: The votes have been called. 

We have about 10 minutes before a lot of us need to get there. 

That means I think we can get 5 minutes on each side and then 

we will recess and have folks come back to finish this panel. 

So the Chair now recognizes the vice chair of the subcommittee, 

Mr. Harper, for 5 minutes. And congratulations on your elevation. 

Mr. HARPER. Thank you, Mr. Chairman. 

Mr. Stanislaus, in light of the fact that the final rule requires the 

cleanup level to be set at either the MCL or the background level, 

if a State chooses to incorporate risk-based decisionmaking into the 

coal ash permit programs that establish an alternative groundwater protection standard, would EPA be able to approve the State 

plan as being as stringent or more stringent than the final rule? 

Mr. STANISLAUS. So let me break it down into a couple of subcomponents. So we have integrated the same standard framework 

as a Superfund cleanup. So we begin with protecting groundwater 

in all cases. 

However, in selecting the cleanup remedy, you can look at the 

particular circumstance that is involved in the cleanup. So, in the 

same way that we provide all those on-the-ground factors, that can 

be brought to bear in these decisions. 

With respect to an approval of a cleanup plan, again, in the 

EPA’s approval of a solid waste management plan, the States can 

choose to enable the State’s approval of the cleanup plan. So I 

think there is that ability for States to do that. 

Mr. SHIMKUS. Mr.—you just finished. 

Mr. HARPER. Let me just ask this: If a State determines that 

there is no human receptor for the groundwater and that a cleanup 

standard above the MCL or background is appropriate, would that 

meet the minimum requirements of the rule? 

Mr. STANISLAUS. Let me get back to you on that. 

Mr. HARPER. OK. If you will let us know. 

Mr. STANISLAUS. Sure. 

Mr. HARPER. I will just 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. 

There is no question that coal ash can pose serious risk when not 

disposed of properly. Many people in this room have spent the better part of a decade working on this issue, and I commend EPA for 

finalizing this rule. 

I wanted to ask Mr. Stanislaus: Do you have the confidence that 

this final rule is protective of public health and the environment? 

And, in your view, are there gaps in the protections under this rule 

that would need to be filled by legislation? 

Mr. STANISLAUS. I believe the rule is very strong and very protective of the risks that we have identified. 

Mr. PALLONE. And in terms of any gaps that would need to be 

filled by legislation? 

Mr. STANISLAUS. No. We don’t believe that there are gaps. We 

believe all the risks and all the information contained in the reg 

28 

can be put in place, all of the rigorous technical standards to provide the necessary protections. 

Mr. PALLONE. Well, what about beneficial reuse? Will this rule 

restrict beneficial reuse in any way to stigmatize coal ash? 

Mr. STANISLAUS. We don’t believe it will. We provided real clarity 

with respect to beneficial use, and that beneficial use is not subject 

to the rule. 

Mr. PALLONE. But, still, I expect we are going to hear from the 

second panel that legislation is needed to remove EPA’s authority 

to regulate coal ash under subtitle C in the future. 

What factors might lead EPA to someday regulate coal ash under 

subtitle C? 

Mr. STANISLAUS. Well, to be clear, we had proposed an approach 

under D and C, and we have made a decision under D. So the C 

proposal is no longer on the table. So like any other rule, in the 

future, we—you know, it will go through the same public notice 

and comment to evaluate future considerations. 

However, I would note that we have strong confidence that, between the national criteria—strong national criteria and the utilization of the State solid waste management planning program and 

EPA’s approval of that, that we believe, moving forward, that we 

will have the protections that are necessary to protect communities, and we are moving forward and working with the States on 

implementation. 

Mr. PALLONE. I mean, I think it is safe to say, if coal ash does 

not become more toxic and implementation of subtitle D is effective, EPA would have no reason to pursue a subtitle C rule. 

But if it turns out that ash does become more toxic and we find 

that States and utilities are not doing enough under the subtitle 

D rule to protect human health—if that turned out to be the case, 

would it be important for EPA to be able to pursue subtitle C regulation, in your opinion? 

Mr. STANISLAUS. Well, again, our focus right now—we have reviewed and evaluated data and comments by all stakeholders, and 

we believe we have put in place a rigorous rule to offer the protection to communities around the country. 

So we are moving forward in implementation, working with 

States, working with public stakeholders, working with utilities, to 

provide the protection. So we are not looking at further rulemaking 

at this moment. 

Mr. PALLONE. No. I understand that. 

But I am just saying, you know, because of those who advocate 

that you shouldn’t be able to pursue subtitle C regulation or to 

eliminate that option, if it turns out that the ash is becoming more 

toxic and that the States and utilities aren’t doing enough under 

subtitle D, do you think it would be important for EPA to continue 

to be able to pursue subtitle C regulation in that eventuality? 

Mr. STANISLAUS. Well, you know, like every other rule, you know, 

we will look at implementation of this rule and see what issues are 

unaddressed in the future. 

Mr. PALLONE. So you don’t want to comment on the possibility 

of pursuing subtitle C regulation and whether that is important? 

Mr. STANISLAUS. Not at the moment. 

Mr. PALLONE. Not at this time. 

29 

All right. Thank you so much. 

I yield back, Mr. Chairman. 

Mr. SHIMKUS. The gentleman yields back his time. 

I think we will recess now and come back immediately after the 

vote. There should be two votes. You all have time to stretch and 

get a cup of coffee. But most of us will come back promptly after 

the second vote. 

So this hearing is now recessed. 

[Recess.] 

Mr. SHIMKUS. I am going to call the hearing back to order. 

And I think the next order of business is recognizing the gentleman from West Virginia for 5 minutes for his round of questions. 

Mr. MCKINLEY. Thank you, Mr. Chairman. 

Thank you, again, for your appearing. And, again, as I said in 

my opening remarks, I appreciate the working relationship we 

have had with you. 

Just a couple, maybe four quick questions, three or four quick 

questions, two of which, Mr. Stanislaus, might be just ‘‘yes’’ or ‘‘no.’’ 

But the first one is, do you personally think that coal ash is a 

hazardous material? 

Mr. STANISLAUS. Well, we—— 

Mr. MCKINLEY. ‘‘Yes’’ or ‘‘no’’? 

Mr. STANISLAUS [continuing]. Have identified the various risks 

associated with coal-ash mismanagement, and we put in place the 

technical requirements to be protective against those risks. And we 

have identified the various constituents in coal ash and the way 

that we should establish, for example, a liner and groundwater program to be protective. 

Mr. MCKINLEY. Just in and of itself as a material, whether it is 

in concrete, drywall, or liners—— 

Mr. STANISLAUS. Well—— 

Mr. MCKINLEY. Let me go from there. Would the legislation we 

passed over the last two Congresses, in the 112th and 113th, would 

that have created certainty within the recyclers and the utility industry? 

Mr. STANISLAUS. Well, you know—— 

Mr. MCKINLEY. You don’t think it would? 

Mr. STANISLAUS. Well, what I can say is, with respect to the rule, 

we think it provides the kind of certainty—— 

Mr. MCKINLEY. Well, no, I am not talking about the rule. I am 

talking about the bill that we have. Because, again, Mr. Stanislaus, 

we are all about certainty. I come from the business world. We 

need to have certainty. And that legislation was trying to get that. 

Unfortunately, I believe, I know it was a reasonable effort, but it 

doesn’t create certainty. 

So my last question might be that this proposed rule provides us 

no assurance that coal ash will not be regulated as a hazardous 

waste in the future, so could you explain the Agency’s justification 

for leaving that door open and almost deliberately causing uncertainty on this issue? Can you explain why they kept the door open 

instead of closing it so that we could advance? 

Mr. STANISLAUS. Yes, I actually think that we provide tremendous certainty in the final rule and we explain in numerous situations. 

30 

For example, in beneficial use, I think we make very clear that 

beneficial use is not subject to the rule, that the existing Bevill protections continue to remain. And we think that, coupled with other 

actions that we have taken, will foster not only the stabilization 

but increased use of beneficial use. 

Mr. MCKINLEY. Well, how do you deal with that, that—and on 

page 18 it says, ‘‘This rule defers’’—defers, postpones—‘‘a final determination until additional information is available.’’ I just wonder how—— 

Mr. STANISLAUS. Yes. 

Mr. MCKINLEY. That is like the door is wide open. Because sometime someone is going to make another determination that could be 

based on other information. So I don’t agree with you that there 

is certainty at all in this legislation. I think it was well-intended. 

It helps us resolve the differences between C and D, but it still 

doesn’t give us a view of tomorrow. 

Mr. STANISLAUS. Well—— 

Mr. MCKINLEY. So if we are going to move the ball down the 

field, I have to find out, how do we shut the door? 

Mr. STANISLAUS. Well, actually, in my opinion, I don’t think we 

left the door wide open. I think we have been very clear, as between the two proposals that we had put for public comment, one 

is a C approach and the other a D approach. We went with the D 

approach. 

The language that you are referring to then goes on to say that 

we didn’t have full and complete information in a couple areas. One 

big area was how States would move forward with their programs. 

We believe very strongly that the combination of a clear, consistent Federal set of criteria, coupled with the solid waste management planning program and EPA’s approval of that, will provide 

comfort and certainty with respect to those issues. So we actually 

don’t think that the door is open. 

Mr. MCKINLEY. I guess like you said earlier, we are just going 

to have to agree to disagree on that, because I think it is clear from 

a business perspective, when have that language that something 

can happen in the future, that the next administration could come 

in with a different attitude towards it than you personally have 

had, it makes it uncertain. So we need to just close that. So let’s 

continue working together on that and see if we can’t close the door 

on that. 

Mr. STANISLAUS. Yes. And we can—— 

Mr. MCKINLEY. So I yield back the balance of my time. 

Mr. STANISLAUS. I will reaffirm my and EPA’s commitment to 

continue to work with you and this committee on technical assistance. 

But we also made clear in the preamble that we would not do 

anything without any—we think we have done a good job and have 

provided protections. But any future changes, like any rule, is 

going to be subject to a future process. You know, it would have 

to require another proposal, another notice and comment. 

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

The Chair now recognizes the gentleman from Pennsylvania, Mr. 

Doyle, for 5 minutes. 

31 

Mr. DOYLE. Thank you, Mr. Chairman. And I want to thank you 

for convening this hearing on this final rule. 

Many of my constituents were concerned by the proposed rule on 

coal-ash disposal because of concerns that it might limit beneficial 

reuse on the one hand or fail to protect the public health on the 

other. But I am generally pleased with this rule. EPA has protected 

beneficial reuse and put in criteria that will ensure safe disposal. 

Mr. Stanislaus, I would like to ask you just a few questions. 

The final rule prevents or restricts—does EPA’s new final rule 

prevent or restrict beneficial reuse of coal in any way? 

Mr. STANISLAUS. No. Beneficial use is fully protected and not 

subject to the rule. 

Mr. DOYLE. In fact, coal ash that is beneficially reused won’t be 

subject to the disposal requirement in the rule; is that right? 

Mr. STANISLAUS. That is correct. 

Mr. DOYLE. And, in fact, according to the final rule, 52 million 

tons of coal ash are beneficially reused annually. Can you tell us 

about some of the environmental benefits of recycling coal ash instead of sending it to a landfill or wet impoundments? 

Mr. STANISLAUS. Sure. I mean, saved energy costs, reducing 

greenhouse gases, and reducing impacts to the environment, as 

well as the tremendous economic benefits of replacing virgin material with coal ash. 

Mr. DOYLE. Thank you. 

I want to move on to what we have been hearing a lot of discussion about. You are going to hear a lot about this self-implementing 

requirement for this rule, and I wanted to give you the opportunity—and I know you have talked a little bit about it already— 

on this concern that we are creating a dual regulatory regime, potentially requiring owners and operators to adhere to two sets of 

standards. 

What does it mean when—so the EPA will approve these State 

plans, and you say that they will be approved as long as they demonstrate Federal compliance. What does that mean? You know, 

what does that terminology mean? 

Mr. STANISLAUS. Yes, sure. What States would have to do is to 

integrate the Federal criteria into the State program. 

Mr. DOYLE. So you are saying that any State plan that EPA 

would approve would have within its plan the Federal requirements. So there is no way that any State would be out of compliance with the Federal requirement if you have approved their plan, 

because that will be, at the very minimum, what their plan has to 

adopt, and then they can do something over and above that? 

Mr. STANISLAUS. Well, that is right. And so, from a utility compliance perspective, once that approval happens, the States would 

have to comply with a single set of information, have comfort that 

EPA has approved and made very clear in the preamble that if a 

utility follows a State program that is subject to EPA’s approval, 

EPA will deem that compliance with the Federal criteria. 

Mr. DOYLE. So what you are saying, in effect, that if a State 

adopts that plan and the utility implements it, that there is no way 

they can be out of compliance with the Federal statute. They could 

be out of compliance with the State one if it has extra provisions 

within it. 

32 

Mr. STANISLAUS. That is correct. 

Mr. DOYLE. But you feel that addresses that concern about the 

dual regulation? 

Mr. STANISLAUS. We do. 

Mr. DOYLE. OK. 

That is all the questions I have, Mr. Chairman. Thanks. 

Mr. SHIMKUS. The gentleman yields back his time. 

The Chair now recognizes, it looks like the gentleman from 

North Dakota, Mr. Cramer, for 5 minutes. 

Mr. CRAMER. Thank you, Mr. Chairman. 

And thank you for being here and for your good work on the rule. 

I just have one area—I am going to continue on this line of exploring a little bit on the self-implementing piece, because I spent 

a number of years on the North Dakota Public Service Commission, 

carried the coal reclamation portfolio. And the one thing that I 

heard a lot, especially in—whatever the case might have been, but 

whenever we were challenged in court—and we were plenty of 

times, and we always prevailed as a commission, not because our 

lawyers were superior or anything like that—although we had good 

lawyers, don’t get me wrong—but because the courts in highly technical matters just always defer to the experts, to the administrative 

agency. 

And so this self-implementing thing just makes me a little nervous. And if it makes me a little nervous as a former regulator, I 

can only imagine how nervous it makes the industry. And it just 

seems to me that we could tighten it up and provide the certainty 

that everybody is talking about without compromising in any way, 

really, the protections that we are trying to accomplish and, in fact, 

I think, you know, should be to the benefit of everybody on all 

sides. 

Am I wrong there? Is there a better reason to do it this way, to 

do the self-implementing? 

Mr. STANISLAUS. Well, I don’t disagree with your overall view, 

that courts will provide substantial weight to the technical judgment of States and Federal Government. So, you know, precisely 

for the reasons that you raise is the reason why we are tying these 

minimum Federal requirements to an EPA approval of a State program, because we believe very strongly that the courts will look at 

that and provide substantial weight to the technical judgment of a 

combination of the States and EPA. 

Mr. CRAMER. Sure. I understand all that, and I think that is 

noble. That is why I am just saying, can’t we just go to the next 

step and tie it down so that we are not relying on self-implementation and then the discretion of multiple jurisdictions and multiple 

courts, when we have the experts in what seems to be pretty relative agreement for this place, and, you know, and then just tie it 

down? I think you would get a lot of support. 

But that is really all I have. And I, again, appreciate the hard 

work. 

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. Thanks for holding 

the hearing. 

33 

Mr. Stanislaus, how many tons of coal ash are produced in a year 

in this country? 

Mr. STANISLAUS. How many tons? I don’t have that number 

right—— 

Mr. MCNERNEY. Any idea what fraction of that is used in beneficial ways, you know, for construction or road grade material or so 

on? 

Mr. STANISLAUS. I don’t off the top of my head. I believe about 

30 percent, but I can get back to you on the actual numbers. 

Mr. MCNERNEY. Is there more opportunity for beneficial use of 

coal ash? 

Mr. STANISLAUS. Oh, absolutely. Absolutely. 

Mr. MCNERNEY. How would that happen? What would it take for 

more beneficial uses to come about? 

Mr. STANISLAUS. Well, you know, I think probably Tom Adams 

would probably be a better witness to ask that. But I think, clearly, 

when we have discussed with the reuse manufacturers, you know, 

providing the certainty that I think will be provided will be a first 

step into expanding the beneficial use of coal ash. 

Mr. MCNERNEY. So that is a part of the rule that has been promulgated. 

Mr. STANISLAUS. That is right. That is right. 

Mr. MCNERNEY. OK. 

I am a little concerned about citizen lawsuits with regard to the 

rule or the potential legislation that might come out of this issue. 

How quickly do you think that we will start to see improvements 

in the safety of coal-ash disposal sites as a result of the rule that 

has been promulgated? 

Mr. STANISLAUS. Well, I think we will begin immediately. So the 

rule takes effect in basically 6 months from publication, which 

should be in about a month or so. 

So there are early obligations, like making sure you have a dustcontrol plan in place, make sure you begin the inspections. I think 

you will see some early improvement. A lot of these are things that 

were already done by some of the leading utilities anyway, so I 

think that is going to be more of a standardization around the 

country. 

And then, as time progresses, roughly in about 18 months, some 

of the more structural issues would be addressed, those things that 

potentially contaminate groundwater, potentially have an impact 

on structural stability would be addressed. 

Mr. MCNERNEY. Do you expect the robust transparency provisions to incentivize compliance? 

Mr. STANISLAUS. Oh, absolutely. And I think all the studies show 

that the more disclosure of data and compliance in a very deep and 

granular way, I think it is an incentive for compliance, and also it 

enables citizens adjacent to these facilities and the States to monitor compliance. 

Mr. MCNERNEY. Do you think that the citizens and the States 

are going to buy the disclosures that the disposal agencies are 

going to be putting out on their Web sites? Do you think people are 

going to buy it, or do you think that they are going to revert to lawsuits to satisfy their concerns? 

34 

Mr. STANISLAUS. Well, I think that one of the reasons that we 

put in this public disclosure was to respond to citizens’ requests of 

having detailed information. For example, groundwater data and 

how the groundwater data compares with whether it is or is not 

exceeding protector new standards. So I do think that it is going 

to add substantial value to compliance and oversight by citizens. 

Mr. MCNERNEY. So there is enough teeth, then, in your opinion, 

in the compliance requirements that people will take satisfaction 

that they are actually doing what they are saying? 

Mr. STANISLAUS. We do. We do. 

Mr. MCNERNEY. The last question: Is there a concern that if the 

committee passed a bill that was signed into law, it would stifle the 

beneficial use of coal ash or the safe disposal of coal ash? Do you 

think that passing a law would stifle what is going to take place 

as a result of the rule? 

Mr. STANISLAUS. Well, you know, I really cannot answer that 

question today in a vacuum. What I can say is that, you know, we 

strongly believe the rule provides the protection as well as the certainty—protection for communities next to impoundments as well 

as certainty to the beneficial use market. 

So, you know, I really can’t provide an opinion as to what the effect of any legislation would be regarding certainty at this moment. 

Mr. MCNERNEY. OK. 

I will yield back, Mr. Chairman. 

Mr. SHIMKUS. The gentleman yields back his time. 

Before I yield to Mr. Flores, I want to ask unanimous consent 

that a letter written today by the U.S. Green Building Council be 

submitted for the record. Is there objection? 

Hearing none, so ordered. 

[The information appears at the conclusion of the hearing.] 

Mr. SHIMKUS. Now I would like to recognize Congressman Flores 

from Texas for 5 minutes. 

Mr. FLORES. Thank you, Mr. Chairman. 

And, Mr. Stanislaus, thank you for joining us today. 

I want to give you a quote in the answer to the question about 

having multiple opinions of judges determine how the enforcement 

is carried out. You said, ‘‘We don’t anticipate any issues in that regard.’’ 

I will tell you, from a real-world perspective, any time that you 

don’t have the right type of rulemaking, you will have that instability, if you will, in the real world in terms of the enforcement 

process. And not only could you have it among the States, you 

could have it within a State, because you have multiple district 

judges that will make their own technical opinion. So I urge you 

to keep that under consideration as you move forward. 

This gets into the law, if you will, and that is, in terms of legacy 

sites, walk us through how the EPA believes that it has the authority to regulate legacy sites. And, in particular, I would need the 

specific reference to RCRA, if that is what you are relying upon to 

make the rules. 

Mr. STANISLAUS. Sure. So, clearly, we have set forth in the rule 

that inactive sites at an active power plant and active units at a 

power plant have the same exact risk. You know, this has coal ash, 

with all of its constituents of coal ash; it has water. And under 

35 

those conditions, it poses the identical risk of structural failure and 

impacting communities, leaching into groundwater. 

So we believe, because of those circumstances, that RCRA provides us the ability and authority and can mandate that kind of 

protection, because they are identical units but for it is not actively 

being used for disposing of coal ash. 

Mr. FLORES. OK. 

Let’s take that to the next step, when you are talking about 

those particular impoundments. When you proposed the application 

of location restrictions to existing surface impoundments, the EPA 

acknowledged that these location restrictions would force a majority of the current impoundments to close. 

And so do you have an estimate of how many will close? And 

moving further upstream from those closures, what sort of reliability issues could be imposed on our grid? 

Mr. STANISLAUS. Yes. Well, I don’t have that estimate. I can get 

you that information. I believe it is contained in the preamble, but 

I can get you that information. 

But just to be clear, you know, the final rule provides location 

requirements, but it does not begin with closure. It begins with examining all the location criteria—proximity to wetlands, proximity 

to groundwater aquifers. Then a utility will have to determine 

whether or not they are in compliance with that. Then they will 

have to determine, can they put in engineering solutions to provide 

those kind of protections. So it would not automatically trigger closure. 

But I can get you that data. 

Mr. FLORES. OK. I think that would be important, because I 

think in your rule you acknowledge that it will cause a majority 

of these to close, and I think that creates an issue in terms of reliability. 

Mr. STANISLAUS. Yes. I will look at that. I am not sure that is 

correct, but I will check that and get back to you. 

Mr. FLORES. OK. 

And then, to the extent that an operator grants itself an extension, what do you think the impact will be in terms of citizen lawsuits and let’s just say the instability or the lack of clarity that that 

causes for an operator? 

Mr. STANISLAUS. Well, because we have gone out, we have visited 

numerous coal-ash impoundments around the country, we have reviewed information from utilities about the different dimensions of 

impoundments, because some are going to be more challenging to 

close than others—in other words, we do put in place in a very specific way those circumstances where they can enable themselves of 

extensions. 

So we think the rule itself provides that ability to extend, when 

circumstance justifies that. And that would be coupled with, obviously, the utility disclosing those circumstances. But we believe, 

once you follow that, there will not be a violation of the Federal 

rule. 

Mr. FLORES. OK. And, therefore, no citizen litigation would follow, then. Is that—— 

Mr. STANISLAUS. Yes. We don’t believe there would be a basis for 

citizen suits in that circumstance. 

36 

Mr. FLORES. OK. 

Mr. Chairman, thank you. I yield back. 

Mr. SHIMKUS. The gentleman yields back his time. 

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

who was actually very involved in pushing this legislation through 

in the last couple Congresses. 

Mr. LATTA. Well, thank you very much, Mr. Chairman. 

And, Mr. Administrator, thanks very much for being with us 

today. 

If I could just go back, I know that there has been a lot of discussion already on the beneficial use of coal ash, and I know we have 

had different panels in here over the last couple years talking 

about it. One of the things I know that you had mentioned a little 

bit earlier, because when you said in your testimony that approximately 40 percent of CCR generated in 2012 was beneficially 

used—but, again, in the testimony that we have heard, you know, 

we have States out there that are saying, boy, if the EPA would 

ever change its mind, we are going to require buildings to have 

things ripped out or something like that, so you got school districts 

saying, we don’t want to use material that might in the future have 

some kind of EPA coming back and saying that it could be hazardous. 

When you use the term ‘‘certainty’’ that you have mentioned, 

what is the certainty that the EPA can give to folks out there that 

there is not going to be a change? Because, again, if it is road material or it is block material—but it is that material that is actually 

being used inside of a building that a lot of folks are worried about, 

school districts are worried about. 

So how do you define ‘‘certainty’’? And how do we make sure that 

the folks out there have that certainty of mind that the EPA is not 

going to change in a couple years what they are defining as a hazardous or nonhazardous material? 

Mr. STANISLAUS. Sure. Thank you. 

You know, so, even before the finalization of the rule, because of 

this issue of certainty and risk and the comments that we received 

from the beneficial-use industry, we first began by developing a 

methodology to evaluate the continued use of beneficial use. We 

used that methodology and applied it to encapsulated uses, and we 

confirmed that concrete and wallboard, the largest two uses of beneficial, can continue to move forward. So we believe that provided 

a significant certainty. And I know Tom Adams can speak for himself later on the panel. 

Secondly, you know, we also heard that this cloud—some advocates have noted that the cloud of uncertainty of not finalizing the 

rule continues to create some uncertainty. And we believe our decision to go with the D proposal as opposed to the C proposal provides a second set of certainty. And, you know, so the C proposal 

is no longer on the table. 

So we actually believe that we provided substantial certainty to 

the market. And I will let Tom talk more about that. 

Mr. LATTA. You know, when you talk about the methodology, 

how do you go about that? Who is at the EPA? Who is sitting down 

at the table to really come up with the methodology to come forward with that standard or what that should be set at? 

37 

Mr. STANISLAUS. So, you know, we have engaged particularly the 

beneficial users in the development of the methodology. So this is 

a methodology to be used by users, by manufacturers, or by States 

to confirm that a product that uses coal ash as opposed to a product that doesn’t use coal ash are comparable, and so, therefore, it 

can be safely used to replace virgin products. 

So, you know, we think that the methodology has been well-received in the marketplace and our application of the methodology 

to these specific uses like concrete and wallboard has been well-received. 

Mr. LATTA. OK. Thank you. 

Mr. Chairman, in the interest of the second panel, I am going to 

yield back balance of my time. 

Mr. SHIMKUS. And I thank you for that. 

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

Johnson, for 5 minutes. 

Mr. JOHNSON OF OHIO. Thank you, Mr. Chairman. 

And thank you, Mr. Director, for being here with us this morning. 

I want to get a clarification on something you said earlier. So the 

State program does not operate in lieu of the Federal program, correct? 

Mr. STANISLAUS. That is correct. 

Mr. JOHNSON OF OHIO. OK. So if the State program does not operate in lieu of the Federal rule, then both sets of requirements are 

still enforceable, correct? 

Mr. STANISLAUS. Well, that is precisely because we have heard 

those comments during our public comment process about the possibility of precisely that. That is why we strongly believe that there 

is a vehicle to integrate the Federal requirements into a State program and have EPA approve that State program to have that 

alignment occur. 

Mr. JOHNSON OF OHIO. OK. 

So, for corrective action, the final rule requires that if a constituent of concern is detected above a statistically significant level 

that the groundwater protection standard must be set at either the 

maximum containment level or at the background concentration, 

whereas the proposed rule, like the municipal solid waste program, 

would have allowed the owner/operator to establish an alternative 

groundwater protection standard based on site-specific conditions. 

So how does the EPA anticipate that this will impact ongoing 

corrective action at coal-ash disposal units in States that utilize 

risk-based decisionmaking? 

Mr. STANISLAUS. Well, we believe the risk-based decisionmaking 

that is core to a cleanup determination will continue. Now, what 

we have done in the rule is we brought the various factors that are 

used in the Superfund program to do exactly what you noted, to 

consider those site-specific factors. 

So we always begin with protecting groundwater, protecting the 

highest use of groundwater. But then, when you go and look at the 

specific cleanup remedy that fits a particular situation, you evaluate the various technical factors in determining the cleanup that is 

most appropriate to achieve a cleanup that is protective. 

38 

Mr. JOHNSON OF OHIO. So that ability to establish an alternative 

groundwater protection standard based on site-specific conditions, 

that would still be there, in your view? 

Mr. STANISLAUS. Yes. So what a utility would do is then look at 

the various factors, no different than a Superfund cleanup, and establish the cleanup option that best fits. Now—so I will just leave 

it at that. Yes. 

Mr. JOHNSON OF OHIO. OK. 

Going down to closure, if the owner or operator puts forth a realistic closure plan and indicates that the facility needs more than 

the required amount of time to close in a safe and appropriate 

manner, technically, the plan doesn’t meet the deadline. 

Is the owner or operator out of compliance with the final rule in 

that case? And at what point is the owner/operator subject to lawsuit, when it puts out the plan with the longer closure date or 

when it actually doesn’t meet the 5-year deadline? 

So you have an owner/operator that says, it is going to take me 

longer than the rule allows to do it properly. What happens? 

Mr. STANISLAUS. Yes. We have received numerous comments precisely on that topic. 

We believe the 5 years is adequate for many of the units, but 

there are going to be some units, because of their size, because of 

particular geology, that are going to require some additional time. 

So, in the rule, we built in that opportunity if a utility can demonstrate that those conditions exist. And we articulate various 

timelines, so they can avail themselves of those additional 

timelines set forth in the rule. 

Mr. JOHNSON OF OHIO. OK. 

Mr. Chairman, so we can get to the second panel, I yield back, 

as well. 

Mr. SHIMKUS. The gentleman yields back his time. 

The Chair now recognizes a new member of the subcommittee, 

Mr. Ca ́ rdenas from California, for 5 minutes. 

Mr. CA ́ RDENAS. Thank you very much, Mr. Chairman. And thank 

you so much for having this hearing. 

Mr. Stanislaus, I would just like to ask you your—do you have 

a technical background? 

Mr. STANISLAUS. I do. 

Mr. CA ́ RDENAS. What would that be? 

Mr. STANISLAUS. I am a chemical engineer, before I became a 

lawyer, so—— 

Mr. CA ́ RDENAS. Oh, OK. And they don’t cancel out. I think they 

go well together. 

Well, thank you very much. I appreciate that. Because I think 

that when we are talking about EPA and we are talking about regulations, especially when it comes to things like coal ash, I think 

that there is some science that goes into those decisions, correct? 

Mr. STANISLAUS. That is right. 

Mr. CA ́ RDENAS. And evaluation and understanding. And then 

even beyond science per se, it also goes into probabilities and 

cause-and-effects and things of that nature, correct? 

Mr. STANISLAUS. That is right. 

Mr. CA ́ RDENAS. OK. Well, I am glad to know that you have that 

engineering background. I won’t speak of your law degree, but at 

39 

least engineering background. I am not a lawyer, but I am an engineer, so I appreciate that. 

Now, when it comes to EPA’s new rule which will set national 

criteria for the location, design, and maintenance of the ponds and 

protecting all of the communities that live with this potential risk, 

first of all, I would like to applaud the EPA for moving forward, 

but also this effort is important, especially because—has it been determined or evaluated by the EPA as to who most likely is affected 

by this activity and these ponds? 

Is it more affluent communities? More low-income communities? 

Is there a disproportionate effect when it comes to communities 

that are affected? 

Mr. STANISLAUS. Yes. I am not sure we have done a specific demographic analysis. Clearly, the communities that are adjacent to 

these facilities could potentially be impacted by a catastrophic failure for contaminated drinking water. 

Mr. CA ́ RDENAS. OK. Well, I know that in the Los Angeles Basin, 

if you just look at the geographic area and if you look at income 

demographics, there definitely is a skewing of one side of town has 

a lot more activity where this might take place and the other side 

of town, which might be more affluent, doesn’t have near any of 

this kind of activity, but at the same time maybe none of that activity, for zoning purposes and activity permits and things of that 

nature. So I am just reflecting on what goes on in the L.A. Basin, 

and even with coal ash, by the way, specifically, not just coal ash 

but other elements, as well. 

So one of my questions to you, Mr. Stanislaus, is, can you describe some of the ways this rule will make coal-ash ponds safer 

for vulnerable communities surrounding them? 

Mr. STANISLAUS. Sure. It begins with trying to prevent a catastrophic failure. And, as we know, the TVA incident occurred, essentially destroyed a community, caused about $1.3 billion of impact, you know. So it contains a rigorous set of requirements to 

prevent those kinds of things—regular inspections, structural evaluation, engineering evaluation. And based on that evaluation, impoundments will either have to enhance the structural stability or, 

if they cannot, they would have to close that facility. 

With respect to preventing groundwater—it begins with putting 

in place a comprehensive program of groundwater monitoring and, 

if groundwater monitoring exceeds protective standards, immediately moving forward on cleaning up the groundwater. And in situations where an online impoundment exceeds the groundwater 

protection standards, then they would have to close. 

So those are some of the elements. And, also, the other big issue 

is dust. We have heard from many communities about coal-ash 

dust. So we have put in place a comprehensive program to control 

coal-ash dust from migrating into communities. 

Mr. CA ́ RDENAS. OK. 

Now, the EPA, when you make this rule, how do you come about 

it? Too many people, in my opinion, whether elected or not, in this 

country keep thinking that anytime you have regulations they are 

just trying to hurt business. I mean, what kind of effort goes into 

making sure that you strike some kind of balance and understanding of what is going on in the real world and what should 

40 

happen to create the public safety requirements that we should— 

should we have standards in the United States of America? 

Mr. STANISLAUS. Sure. I mean, I can begin with kind of listening 

to and evaluating all the comments that we receive from everyone—you know, clearly, the communities impacted. But, clearly, we 

have to have an implementable rule. And so we looked at the pragmatic issues of how can it be implemented in a realistic way that 

considered the on-the-ground circumstance of size of the unit. 

So we think it is a protective rule and a rule that is pragmatic 

and considers the on-the-ground construction issues. 

Mr. CA ́ RDENAS. So you are not just going into this blindly without understanding and appreciating what is going on in the real 

world and the day-to-day effects of a particular industry? 

Mr. STANISLAUS. That is right. It is very much data-driven and 

scientific-driven and reflecting the comments we have heard from 

all stakeholders. 

Mr. CA ́ RDENAS. OK. So commerce is something that is taken into 

account, as to the flow and effects of commerce, when these decisions and/or these processes are discussed? 

Mr. STANISLAUS. Oh, sure. You know, we want to make sure 

that—again, the challenge of closure and the relative size of that 

and also kind of avoiding, you know, the billion-dollar consequence 

of these catastrophic failures. So all of that goes into our consideration. 

Mr. CA ́ RDENAS. Uh-huh. 

I know there are more examples outside the United States of incidents, catastrophic incidents, more than in the United States, so 

far, as your data and research shows? 

Mr. STANISLAUS. Ours is based purely on the U.S. information, 

so I don’t know the answer to that question. 

Mr. CA ́ RDENAS. Well, what I would like to recommend—I don’t 

think it is beyond your purview to at least understand what is 

going on in the rest of the world, because, especially since the 

world is getting smaller with all of this international commerce, I 

think it is important for us to understand, as Americans, how having regulations here that don’t happen in other parts of the world, 

how people are affected when they don’t have that. I think that, as 

Americans, we are kind of spoiled by what we don’t see and the 

regulations that do, in fact, protect us. 

And a point of personal privilege. I would like to correct myself, 

Mr. Chair. We don’t have coal ash in the L.A. Basin or in California, but I was thinking about the piles of petroleum coke that 

we have in the L.A. Basin. So I apologize, and I wanted to correct 

myself. 

Thank you so much, Mr. Chair. I yield back. 

Mr. SHIMKUS. You are more than welcome. It is great to have 

you on the subcommittee. And we could provide you some coal ash, 

if you would like some, in the L.A. Basin on some railcars. How 

about that? 

So we want to thank you for coming. Again, great work. We will 

listen to the second panel and see what—I would expect that we 

would try to maybe look at some of these tweaks that you have 

heard about today. 

41 

And, with that, we will dismiss you and we will empanel the second panel. So thank you very much for coming. 

So, as our second panel is being seated, just for the sake of time, 

I am going to—I have done this numerous times, and I always 

mess up. So I think I will just do the introduction of each person 

right before they give the 5-minute opening statement. 

Our panelists all know that their full statement is submitted for 

the record. And just based on time, and we don’t know when the 

votes are, we won’t be mean about the 5 minutes, but we would 

like for you to adhere to that as best as possible. 

So, with that, I am going to turn to the second panel and, first, 

Mr. Thomas Easterly, who is the commissioner of the Indiana Department of Environmental Management. 

We are very happy to have you here. And, sir, you are recognized 

for 5 minutes. 

STATEMENTS OF THOMAS EASTERLY, COMMISSIONER, INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT; MICHAEL G. FORBECK, ENVIRONMENTAL PROGRAM MANAGER, 

BUREAU OF WASTE MANAGEMENT, PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION; LISA D. JOHNSON, 

CHIEF EXECUTIVE OFFICER AND GENERAL MANAGER, SEMINOLE ELECTRIC COOPERATIVE, INC.; THOMAS H. ADAMS, 

EXECUTIVE DIRECTOR, AMERICAN COAL ASH ASSOCIATION; 

JAMES R. ROEWER, EXECUTIVE DIRECTOR, UTILITIES SOLID 

WASTE ACTIVITIES GROUP; ERIC SCHAEFFER, DIRECTOR, 

ENVIRONMENTAL INTEGRITY PROJECT; AND FRANK 

HOLLEMAN, SENIOR ATTORNEY, SOUTHERN ENVIRONMENTAL LAW CENTER 

STATEMENT OF THOMAS EASTERLY 

Mr. EASTERLY. Thank you, Chairman Shimkus and Ranking 

Member Tonko and members of the subcommittee. 

Good morning. My name is Thomas Easterly, and I am the commissioner of the Indiana Department of Environmental Management, also known as IDEM, and I bring you greetings from Governor Pence of Indiana also. And we appreciate the opportunity to 

share Indiana’s views on the EPA’s final coal combustion residuals 

rule, which we call ‘‘CCR’’ on occasion. 

I am also representing the Environmental Council of the States, 

which we call ‘‘ECOS,’’ whose members are the leaders of the State 

and territorial environmental protection agencies. 

ECOS has worked on the CCR issue for many years, and our resolution on CCR regulation was first passed in 2008 and has been 

reaffirmed as recently as 2013. While EPA’s final rule responds to 

some of the concerns outlined in ECOS’s resolution, other longtime 

State concerns remain unaddressed. 

As an initial point, I express agreement with EPA’s finding that 

coal ash is not a hazardous waste and that coal ash can be safely 

and beneficially reused. EPA’s use of RCRA Subtitle D for coal ash 

is consistent with ECOS’s resolutions. 

As a longtime regulator, I have observed firsthand the tragic adverse environmental and human health impacts of CCR surface impoundment failures. These structural engineering failures devVerDate Mar 15 2010 14:02 Jun 22, 2015 Jkt 037690 PO 00000 Frm 00045 Fmt 6633 Sfmt 6633 F:\114THCONGRESS\114_3EPACOALASHASK_061915\114-3_EPACOALASHPDFMADE
42 

astate people’s lives, destroy property, and contaminate natural resources. The EPA’s self-implementing rule contains robust national 

structural integrity provisions which should result in a meaningful 

reduction in CCR impoundment failures in the future. 

The rule also creates a consistent national set of requirements, 

many of which are already in place in various States, to prevent 

adverse environmental impacts to our water and air. Units unable 

to meet the new criteria will have to close. So they will be solving 

the problem. 

Most important to IDEM and other States is that EPA’s final 

rule explicitly recognizes the major role State regulatory agencies 

currently have and should continue to maintain in overseeing CCR. 

However, by finalizing a self-implementing rule that can only be 

enforced through citizen supervisions of RCRA, the role of State 

regulation, oversight, and enforcement will be significantly 

marginalized. 

EPA envisions that the key State role in this program will be 

maintained by States amending their solid waste management 

plans to incorporate the new Federal requirements. EPA expects 

that, once approved by EPA, the amended plans will receive deference by the courts and citizens. 

While the requirements of the rule are self-implementing for the 

regulated units, the rule schedules and requires States to achieve 

final solid waste management plan amendment, with EPA approval, on a schedule which cannot be met by many States, including Indiana. 

In order to ensure transparency, Indiana’s laws require my agency, IDEM, to have four public notices, with associated comment periods, for new regulatory action. This public process normally takes 

at least 18 months, yet some of the self-implementing deadlines in 

this regulation are as short as 6 months, making it impossible for 

Indiana to have regulations in place to implement those portions 

of the rule. 

Yet, after the State plan is amended and approved by EPA, the 

new CCR rules will remain independently enforceable through 

RCRA citizen suits in Federal district courts. EPA does not have 

the legal authority under RCRA Subtitle D to delegate the new 

rules to the States. 

I would now like to address the need for a legislative amendment 

to RCRA on CCR issues. 

ECOS testified before this committee in April 2013 in support of 

the bipartisan efforts in the House and Senate to create a Federal 

program that allows States to regulate coal-ash management and 

disposal under a set of Federal standards created directly by Congress and implemented by the States. 

Legislation still would be beneficial in several ways to achieving 

this goal. First, legislation could codify EPA’s determination that 

coal ash is nonhazardous and get the going-back-and-forth concern 

done forever. Second, State programs simply cannot operate in 

place of the Federal program without legislation. Third, legislation 

can add certainty to the process of EPA approving State solid 

waste management plans by making clear the criteria EPA would 

apply to determine whether a State program meets the Federal 

43 

CCR standards. And, fourth, legislation could enhance and clarify 

enforcement of CCR requirements. 

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 statement of Mr. Easterly follows:] 

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Mr. SHIMKUS. Thank you very much. 

And I failed to do it and will do it with Mr. Forbeck, but I would 

also mention that you are representing the Environmental Council 

of the States. And they have been very helpful in the process. We 

look forward to working with you. 

And now I want to recognize for 5 minutes Mr. Michael Forbeck, 

Environmental Program Manager from the Pennsylvania Department of Environmental Protection, Bureau of Waste Management, 

and on behalf of ASTSWMO. 

So you are recognized for 5 minutes. 

STATEMENT OF MICHAEL G. FORBECK 

Mr. FORBECK. Good morning, Chairman Shimkus and Ranking 

Member Tonko and members of the subcommittee. My name is Michael Forbeck, and I am president of the Association of State and 

Territorial Solid Waste Management Officials, ASTSWMO, and I 

am here on behalf of ASTSWMO to testify. 

ASTSWMO’s association represents the waste management remediation programs of 50 States, 5 territories, and the District of 

Columbia. Our membership includes State program experts with 

the individual responsibility for the regulation and management of 

solid and hazardous waste. 

Thank you for the opportunity to provide testimony on the EPA 

final rule on disposal of coal combustion residuals from electric 

utilities. The rulemaking has been of longstanding importance to 

ASTSWMO. We were very pleased to see and are in full agreement 

with EPA’s promulgation of the final rule under Subtitle D of the 

Resource Conservation and Recovery Act. 

The focus of my testimony is on the issue of dual State and Federal regulatory authority we see as the result of the final rule’s 

self-implementing construct. We are not offering testimony on specific technical requirements in the rule, as groups with ASTSWMO 

are looking at these as well as beneficial-use components, and we 

will have additional input on the specific provisions at a later time. 

EPA has issued the rule under Subtitle D, part 257, which is 

self-implementing. The RCRA statutory basis for part 258, however, governing municipal solid waste landfills includes requirements for States to develop and implement a permit program to incorporate the Federal criteria and for EPA to determine whether 

those permit programs are adequate to ensure compliance with the 

criteria. 

In ASTSWMO’s comments to EPA regarding the 2010 proposed 

rule, we pointed out that self-implementing standards would set up 

a dual State and Federal regulatory regime for owners and operators that would be problematic for the effective implementation of 

the requirements of the CCR facilities. ASTSWMO recommended 

that a final rule under part 257 include explicit language that EPA 

views compliance with a State program that meets or exceeds the 

Federal minimum criteria as compliance with that Federal criteria. 

We appreciate EPA hearing our concerns about dual State and 

Federal regulatory authority and their efforts, working within the 

bounds of their statutory authorities, to provide a mechanism 

through the State solid waste management plans to address our 

54 

concerns. However, we see difficulties with the State plan mechanism, which are as follows: 

One is timing. In order for States to adopt these minimum standards by amending their solid waste management plans, thereby 

avoiding dual regulatory authority in theory, the process would 

have to be completed within 6 months of the date of publication of 

the final rule in the Federal Register. This is insufficient time, 

since the potential lengthy public participation process involved in 

the submission of State plans under 40 CFR, part 256, could preclude a timely approval even if it went smoothly. So there would 

still be dual State and Federal implementation for a time period 

past 6 months. 

Solid waste management plans also fall short on full State implementation because, even after passage and approval of the plans, 

as stated in the preamble of the rule, EPA approval of a State solid 

waste management plan does not mean that the State program operates in lieu of the Federal program. Thus, the plans would not 

fully alleviate dual implementation of State and Federal standards. 

In the preamble, the EPA states that a facility that operates in 

accordance with an approved solid waste management plan will be 

able to beneficially use that fact in a citizen suit brought to enforce 

the Federal criteria. This is subjective and speculative, as no one 

with absolute certainty can predict a court’s decision. Further, citizen suits filed in different jurisdictions can result in individual 

courts interpreting the plan and rule differently, thus rendering 

different decisions that lead to inconsistent implementation of the 

rule. 

There is also a concern that more sections of the solid waste 

management plan than the narrow reopening of the plan to incorporate CCR rule would be reviewed by EPA and potentially require 

additional revisions to the State plans that may be beyond the 

scope of CCRs. 

ASTSWMO believes that legislation such as H.R. 2218 that was 

passed by the House in the last Congress would provide for the certainty of State primacy in implementation through State permit 

programs for CCR, enforceable by the State, and provide a clearer 

and consistent understanding of the permitting and enforcement 

rules of the State. State permit programs for CCR would have the 

additional benefit of allowing flexibility for States to have regionally appropriate State standards. 

In conclusion, we appreciate EPA’s decision to regulate CCRs 

under Subtitle D and providing a mechanism within the confines 

of part 257 for implementation of the rule by the States. However, 

the revision of the solid waste management plan does not fully 

eliminate dual implementation of CCR regulatory programs. 

ASTSWMO looks forward to working closely with the EPA and 

Congress regarding the CCR rule implementation. 

Thank you again for the opportunity to provide this testimony, 

and I will be here for questions. 

[The statement of Mr. Forbeck follows:] 

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Mr. SHIMKUS. Thank you very much. 

Next, we would like to recognize Ms. Lisa Johnson, chief executive officer and general manager of Seminole Electric Cooperative, 

Incorporated. 

And just for your information, I have a lot of cooperatives in my 

district, and we appreciate the work you all do. 

STATEMENT OF LISA D. JOHNSON 

Ms. JOHNSON. Thank you, Mr. Chairman. And good afternoon. 

My name is Lisa Johnson, and I am the CEO and general manager 

at Seminole Electric Cooperative, headquartered in Tampa, Florida. 

Seminole is one of the largest not-for-profit generation and transmission cooperatives in the country. Seminole is owned by nine notfor-profit consumer-owned electric cooperatives, and, collectively, 

we provide safe, reliable, competitively priced electricity to more 

than 1 million consumers and businesses in parts of 42 Florida 

counties. 

On behalf of Seminole and the National Rural Electric Cooperative Association, I would like to thank you for your time this morning as I present our testimony on this important issue. 

Seminole would like to acknowledge that we support the Environmental Protection Agency’s decision to designate coal combustion residuals, or CCRs, as nonhazardous. The EPA’s approach, 

supported by data from its own investigations, balances the need 

to protect public health and the environment without creating an 

undue burden on affected facilities. 

Even with a nonhazardous final rule, we are seeking your support to provide additional legislative certainty. 

Seminole owns and operates Seminole Generating Station, or 

SGS, a 1,300-megawatt coal-fired power plant in Putnam County, 

Florida, employing nearly 300 hardworking, skilled Floridians. SGS 

has more than $530 million of environmental control equipment, 

making it one of the cleanest coal-based power plants in the U.S. 

Seminole generates approximately 800,000 tons of CCRs per 

year. However, Seminole recycles more than two-thirds or roughly 

530,000 tons per year of our CCRs to produce wallboard, cement, 

and concrete block. 

At SGS, one CCR material is converted into synthetic gypsum 

and sold to Continental Building Products. Continental is a wallboard production facility specifically constructed in 2000 to utilize 

the synthetic gypsum from SGS. 

Since 2000, more than 7 million tons of this CCR material have 

been converted into wallboard—wallboard used to build homes and 

businesses throughout Florida and the country. 

Seminole also recycles all of the facility’s bottom ash to manufacture cement and stronger, lighter concrete block. If not used beneficially, these byproducts would have been placed in a landfill. 

In 2009, Seminole received a sustainable leadership award from 

the Council for Sustainable Florida for our beneficial reuse of 

CCRs. And SGS was named one of the top six coal plants in the 

world by Power Magazine for our recycling practices and environmental accomplishments. 

62 

One of Seminole’s most important goals is to operate our power 

plants in a safe, environmentally responsible manner and in full 

compliance with all permits issued by the Florida Department of 

Environmental Protection and the EPA, bringing us to one of our 

concerns with the new rule. 

While EPA will now regulate CCRs as nonhazardous, the rule is 

self-implementing, which means facilities covered by the rule must 

comply with the Federal rule regardless of adoption by the State. 

For example, should Florida adopt the EPA’s final rule, the Federal 

rule also remains in place, creating dueling regulatory regimes. 

As a self-implementing final rule, the typical method for a State 

or citizen group to check compliance at a facility that may or may 

not be adhering to the rule is to file suit against the facility. This 

could result in frivolous and costly legal disputes in Federal district 

courts, where the resulting interpretations and penalties could vary 

significantly. For not-for-profit electric cooperatives, this is especially troublesome, as any costs incurred must be passed on to the 

consumer-owners at the end of the line. 

We ask that you eliminate the legal double-jeopardy aspect of 

this rule if a State fully adopts the EPA’s new final rule. 

The next major concern we have with the rule is the complete 

lack of certainty that CCRs will continue to be regulated as nonhazardous. For Seminole, this is extremely problematic, as a major 

component of SGS design is based on our environmental control 

systems and our recycling practices. Should EPA decide to regulate 

CCRs as hazardous at a later time, Seminole would be forced to 

dispose of CCRs, turning a beneficially used product into an expensive landfilled waste stream, driving up the cost of electricity for 

our cooperative consumers. 

On numerous occasions, the EPA has determined that CCRs are 

not hazardous, and there are no new findings to justify a change 

in EPA’s determination. We ask that you end the continuous reevaluation process and confirm that CCRs are and will continue to 

be regulated as nonhazardous. 

For Seminole and other affected facilities, we are seeking regulatory certainty so that we can continue to provide safe, reliable, 

and affordable electricity while fully complying with all applicable 

rules, regulations, and laws. 

On behalf of Seminole and NRECA, I thank you for the opportunity to meet with you today and share our views on this very important rule. 

[The statement of Ms. Johnson follows:] 

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Mr. SHIMKUS. Thank you very much. 

Now I would like to turn to Mr. Thomas Adams, executive director of American Coal Ash Association. 

You are recognized for 5 minutes, sir. 

STATEMENT OF THOMAS H. ADAMS 

Mr. ADAMS. Mr. Chairman, my name is Thomas Adams. I am the 

executive director of the American Coal Ash Association. I would 

like to thank you for the opportunity to come and speak to you and 

the subcommittee today about one of America’s greatest recycling 

success stories and how that continued success depends on regulatory certainty. 

The ACAA was established almost 50 years ago to advance the 

beneficial use of coal combustion products in ways that are environmentally responsible, technically sound, commercially competitive, 

and supportive of a sustainable global community. 

We are not a large trade association. We are not based in Washington, DC. We are headquartered in Farmington Hills, Michigan, 

and have a staff of two full-time employees. We rely on volunteer 

members to accomplish our work, which is mostly technical. 

I would like to emphasize that, while we have some of the largest 

utilities in the country as members, most of our members are small 

businesses, comprised of people who have dedicated their entire career to the cause of beneficial use and improving our environment. 

It is these small businesses that were hurt most by the regulatory 

uncertainty EPA created in 2009 when it suggested the possibility 

of ‘‘hazardous waste’’ designation for coal-ash management. 

There are many good reasons to view coal ash as a resource rather than a waste. Using it conserves natural resources, saves energy, and significantly reduces greenhouse gas emissions from the 

manufacturing of products that it replaces. 

In many cases, products manufactured with coal ash perform better than products made without it. For example, the American 

Road and Transportation Builders Association determined that the 

use of coal ash in concrete roads and bridges saves departments of 

transportation across the country over $5 billion per year. 

It is important to remember in this conversation that coal ash 

has never qualified as hazardous waste based on its toxicity. It 

does contain trace amounts of metals, and those metals are found 

at similar levels in soils and hundreds of household items. An 

ACAA study released in 2012 analyzed data from the U.S. Geological Survey which showed that concentration of metals and coal ash, 

with very few exceptions, are below environmental screening levels 

for residential soils and are similar to the concentrations found in 

common dirt. Despite a drumbeat of publicity by anti-coal environmental groups, coal ash is no more toxic than the manufactured 

materials it replaces. 

Unfortunately, this discussion has had real-world negative consequences for the beneficial use of coal ash. When EPA began discussing a potential ‘‘hazardous waste’’ designation for coal ash in 

2009, the Agency cast a cloud over beneficial use that caused coalash users across the Nation to decrease beneficial-use activities. 

The volume of coal ash used since 2008 has declined every year 

since that year. 

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The decline of beneficial use stands in stark contrast to the previous decade’s trend, when in the year 2000 the recycling volume 

was 32.1 million tons at the time when the EPA issued its final 

regulatory determination that the regulation of coal-ash management as hazardous waste was not warranted. Over the next 8 

years, with EPA encouragement, coal-ash beneficial use skyrocketed to 60.6 million tons and almost a 100 percent increase in 

the use. According to the most recently released data from 2013, 

51.4 million tons of CCPs were beneficially used, down from 51.9 

million in 2012 and well below the 2008 peak. 

The great irony of this lengthy debate over coal-ash disposal regulations is that the debate caused more ash to be disposed. If the 

past 5 years had simply remained equal to 2008’s utilization, we 

would have seen 26.4 million tons less coal ash put into landfills 

and impoundments. 

The ACAA appreciates EPA’s final decision to regulate coal ash 

as nonhazardous. We believe this decision puts science ahead of 

politics and clears the way for the beneficial use of coal ash to 

begin growing again, thereby keeping millions of tons out of landfills and ponds in the first place. 

We are also painfully aware, however, that EPA has made final 

decisions before, only to reverse course in the future. A hazardousversus-nonhazardous debate occurred prior to the Agency’s 2000 

final determination, which 8 years later turned out to be not so 

final. 

Additionally, the final rule’s preamble states that the rule defers 

final double regulatory determination with respect to CCR that is 

disposed in landfills and CCR surface impoundments until additional information is available on a number of key technical and 

policy questions. Apparently, 34 years of study, 2 reports to Congress, 2 formal regulatory determinations, and a final rule issued 

after a 6-year rulemaking process may not be enough for EPA to 

make a truly final final determination. 

Bills previously passed by the House would resolve these issues 

permanently. The bills would put enforcement responsibility authority in the hands of professional State environmental regulators 

and expand EPA’s authority to step in if States don’t do the job. 

ACAA supports this approach as better public policy. 

We would like to thank you, Mr. Chairman, for this committee’s 

diligence in addressing this issue. We believe it is important to 

keep beneficial use at the forefront of U.S. coal management policy. 

The best solution to disposal problems is not to dispose. 

[The prepared statement of Mr. Adams follows:] 

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Mr. SHIMKUS. Thank you very much. 

The Chair now recognizes Mr. James Roewer, executive director 

of Utilities Solid Waste Activities Group, on behalf of the Edison 

Electric Institute. 

Welcome, sir. You have got 5 minutes. 

STATEMENT OF JAMES R. ROEWER 

Mr. ROEWER. Good morning, Chairman Shimkus, Ranking Member Tonko, members of the committee. I am Jim Roewer, executive 

director of the Utility Solid Waste Activities Group, or USWAG. I 

am pleased to present this statement on beside of USWAG, the 

Edison Electric Institute, and the American Public Power Association. 

We support EPA’s decision to regulate coal ash as a nonhazardous waste, a decision which is consistent with the rulemaking 

record and with the EPA’s previous regulatory determinations that 

coal ash does not warrant regulation as a hazardous waste. 

Our longstanding position is that EPA should develop a regulatory program for coal ash patterned after the Federal regulations 

in place for municipal solid waste landfills. They would include design standards, location restrictions, dust controls, groundwater 

monitoring and corrective action, as well as structural stability controls for coal ash surface impoundments. 

However, while we support EPA’s regulation of coal ash as a 

nonhazardous waste, there are serious flaws in the new rule due 

to statutory limitations. The problem is that RCRA’s subtitle D program does not authorize the implementation of Federal rules 

through State permit programs, nor does it allow EPA enforcement 

of those rules. The only exceptions are the provisions under which 

EPA issued municipal solid waste landfill rules, which are enforceable through State permit programs with backup EPA enforcement 

authority. 

USWAG urged EPA to use that authority in issuing this rule, 

but EPA determined it could not. We are therefore left with a rule 

that cannot be delegated to States and in which EPA has no enforcement role. Because the rule cannot be delegated to the States, 

it is self-implementing. And relegated new facilities must comply 

with the rules requirement irrespective of whether it is adopted by 

the States. Even if adopted by a State, the Federal rule remains 

in place as an independent set of criteria that must be met. EPA 

is clear on this point. It cannot, this rule—the State program cannot operate in lieu of a Federal program. This will result in dual 

and potentially inconsistent Federal and State requirements. Most 

troubling, we are hearing that some States might not even attempt 

to adopt the new rule, which will guarantee new regulation. 

In addition, the rule’s only compliance mechanism is for a State 

or citizen group to bring a RCRA citizen suit in Federal district 

court. In fact, we believe this is the only Federal environmental 

law that is implemented in that and enforced in that way. This 

means legal disputes regarding compliance with any aspect of the 

rule will be determined on a case-by-case basis by different Federal 

district courts around the country. 

Federal judges will be making complex technical decisions regarding regulatory compliance, instead of allowing these issues to 

79 

be resolved by regulatory agencies that have the technical expertise 

and experience necessary to answer such questions. This is likely 

to produce differing and inconsistent decisions regarding the scope 

and applicability of the rule, depending on where a citizen suit is 

brought, and will undermine the uniform application of the rule. 

This is not a sound strategy for implementing a complex Federal 

environmental program that has such significant implications for 

the power generation industry. 

Because the rule is self-implementing, EPA dropped risk-based 

options for implementing elements of the groundwater monitoring 

program and for conducting cleanups, reasoning that such riskbased decisions require regulatory oversight. As a result, the Federal rule effectively overrides existing State risk-based regulatory 

programs for coal ash that have been proven protective of human 

health and the environment. 

Some of our members are in the middle of implementing longterm site specific closures or cleanups for coal ash facilities. We are 

concerned that the Federal rule’s lack of recognition of State riskbased closure or cleanup programs may effectively negate these efforts. 

The rule also regulates inactive impoundments, impoundments 

no longer receiving coal ash but which contain water and have not 

closed. We fully appreciate such inactive sites may pose risks and 

steps should be taken to address those risks. However, we do not 

believe the EPA has the authority to subject past disposal practices 

to regulations for active—designed for active units, as the agency 

has done in this rule. 

Congress has authorized EPA to address risk from past disposal 

under Superfund and by issuing site-specific remedial orders if past 

disposal poses an imminent and substantial endangerment. If EPA 

wants additional authority, we believe the statute must be amended to grant EPA such authority. 

Finally, the rule does not provide the desired certainty that coal 

ash will not be regulated as a hazardous waste. EPA makes clear 

that it will, at some point in the future, issue a now regulatory determination regarding whether coal ash warrants hazardous waste 

regulation. While EPA has for now settled on the nonhazardous 

waste option, the Agency leaves the door open to revising the rules 

and regulating coal ash as a hazardous waste. This raises serious 

concerns. 

Companies across the country will be investing huge resources to 

come into compliance with the new rule, even as EPA contemplates 

establishing a whole new regulatory program that could effectively 

negate these huge capital expenditures. We need regulatory certainty regarding the status of coal ash under RCRA. This rule does 

not provide that. 

I would like to thank the opportunity—I would like to thank the 

subcommittee for the opportunity to present these views and would 

be happy to answer any questions. 

[The prepared statement of Mr. Roewer follows:] 

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Mr. SHIMKUS. Thank you very much. 

The Chair now recognizes Mr. Schaeffer, director of Environmental Integrity Projects. 

Sir, you are recognized for 5 minutes. 

STATEMENT OF ERIC SCHAEFFER 

Mr. SCHAEFFER. Thank you, Mr. Chairman, and members of the 

committee. Thank you for the opportunity to testify. I am Eric 

Schaeffer, director of the Environmental Integrity Project. We work 

with citizens who live and work around coal ash sites. And as certainty seems to be the theme for the hearing, I would like the 

speak to what certainty might mean to those good people, some of 

whom have been living with this problem for a very long time. 

First, I really don’t think the folks in these communities care 

whether you call it hazardous or whether you call it peanut butter. 

They want coal ash out of their groundwater. They don’t want it 

in their lungs, and they would rather not have 39 million tons of 

it dumped in their river as Duke Energy did to the good people of 

North Carolina less than a year ago. We hear that those kinds of 

problems are things of the past; they aren’t going to happen again. 

I will return to that, but, obviously, they did happen. 

So really the question is whether EPA’s rule or anything Congress does gives people most affected by coal ash pollution the kind 

of certainty they are looking for. I just want to point out that this 

issue has been bumped around for about 30 years. In that time, a 

lot of these disposal sites, which are nothing more than holes in the 

ground, have deteriorated. The cost of responding to spills and the 

resulting contamination from just six companies now exceeds $10 

billion. That is based on Securities and Exchange Commission disclosures. That number is going to climb, whatever happens; 30 

years of no regulation, a bill comes with that, and that bill is coming due. 

Touching briefly on the rule, like everybody here, we like some 

parts, we don’t like others, not too unusual for an EPA outcome. 

The siting and structural stability requirements could be helpful 

and could prevent the kind of catastrophic spills we have seen. 

Monitoring requirements are a good start, especially if the data is 

put online and you don’t have to pay hundreds of dollars to obtain 

it, which you do in many States today. 

I do have to say, though, it has some big loopholes. There is no 

cleanup standard for boron. That is one of the most pervasive pollutants, and it is found at levels far above health standards at 

many coal ash sites. 

Also, it is important to understand nobody is going to get wind 

burn complying with the deadlines in EPA’s rule, some of which 

stretch literally from here to eternity. This is not a fast-paced set 

of standards, and I encourage you to look at those deadlines. 

Before moving forward, I would respectfully ask that you consider two things, two actions. First, I think you should invite Duke 

Energy to appear before this subcommittee to talk about the spill 

that happened less than a year ago because it is important to get 

an understanding of the problem before turning to a solution. You 

can then, with that information, decide whether EPA has addressed the problem. 

87 

Here is what Duke said in 2009: We are confident, based on our 

ongoing monitoring, maintenance, and inspections, that each of our 

ash basins has the structural integrity necessary to protect the environment. 

So if you called in Duke Energy, you could ask them about Dan 

River—because the statement was made about Dan River—so what 

the heck happened? Is it going to happen again? Are you certain 

it is not going to happen again, and how are you certain? 

North Carolina passed a law in the wake of that spill that requires shutdown of active ash impoundments at active plants in 

less than 4 years, a lot faster than EPA requires. Duke Energy 

supported that bill. You might ask them why they supported it and 

why those requirements wouldn’t apply in a place like Indiana 

where Duke also has plants. That is certainty. They have to close 

by date certain. Couldn’t be clearer. 

I would also hope that you consider giving citizens who were affected by the coal ash pollution a chance to speak to you directly 

without interpreters, without lobbyists. I would gladly give my seat 

up so you could hear from them. I am sure Jim would do the same 

thing. You can hear from them directly about what it has been like 

and ask them what kind of certainty they are looking for. 

I think you will hear they would the certainty that leaking 

dumps will be closed and cleaned up sometime in their lifetime. I 

think you will hear that many of them have been waiting a long 

time. I think they will want the certainty they won’t get stuck with 

the bill for that cleanup. They would like the certainty that their 

ash pond is not going to collapse and fall on top of them and dump 

ash into the river. I think they would like the certainty they can 

bring their own legal action if the State doesn’t do anything. I 

think you will hear that, but let them tell you directly. 

I will just say, in closing, the citizens have worked on these 

issues for a long time. They really do deserve to be heard from. I 

hope you will give them that chance. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Schaeffer follows:] 

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Mr. SHIMKUS. Thank you very much. 

You all have done a great job. We have gotten through the opening statements. 

Last but not least, Mr. Holleman, senior attorney for the Southern Environmental Law Center. 

Sir, welcome, and you have 5 minutes. 

STATEMENT OF FRANK HOLLEMAN 

Mr. HOLLEMAN. Well, thank you, Mr. Chairman and Mr. Tonko 

and other members of the committee for the opportunity to be here. 

My name is Frank Holleman, and I live in Greenville, South 

Carolina. I am at the Southern Environmental Law Center, and we 

work with local citizens in the South concerned about their natural 

resources. A committee like this in Washington usually hears from 

representatives of Government agencies and trade associations. 

Today, I want to convey to you all the concerns of local people who 

want to see their communities prosper and their local rivers protected. 

Let’s look for a minute what we are facing in the Southeast. The 

utilities have dug unlined pits in wetlands and right beside our 

drinking water resources. They have put millions of tons of industrial waste containing toxics, like arsenic and lead, into these unlined pits, and they have filled them full of water. These millions 

of wet tons of waste are contained only by earthen dikes that leak. 

The toxic substances in this industrial waste leach into the groundwater, which then flows into the rivers and towards neighborhoods. 

This situation is made worse because most of these pits are decades old and their infrastructure is rotting. 

We have had two catastrophic failures from this coal ash storage 

in the south, by TVA at Kingston, Tennessee, and by Duke Energy 

in the Dan River in North Carolina and Virginia. One local water 

system is being forced to abandon public drinking water wells. Fish 

have been killed in the hundreds of thousands. Property values of 

nearby landowners have been affected, and groundwater has been 

contaminated with substances like arsenic. 

My main point is this today, that Congress should not take away 

from the—should not take away the rights of the local communities 

to protect themselves from this dangerous coal ash storage. The 

Congress should not leave the future of these people to Government bureaucracies alone. The citizen’s right to enforce a new EPA 

rule is essential. Now what we have seen in the Southeast is clear: 

The State agencies have not effectively enforced the law against 

these politically powerful entities. Let me give you examples. 

In South Carolina, where I spent virtually all of my life, it has 

been clear for years that unlined coal ash storage by our three utilities violate antipollution laws, yet no Government agency has 

taken action to force a cleanup. Local organizations instead enforce 

the law with the result today that all three utilities in our State 

are cleaning up every water-filled riverfront coal ash lagoon they 

operate in the State. And they are creating jobs. They are promoting recycling. And one of our utilities calls these cleanups a 

win-win for all concerned. 

In North Carolina, nothing was happening to force Duke Energy, 

which has a statewide monopoly to clean up its coal ash lagoons. 

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Local community organizations, not the State, had to take the initiative to enforce clean water laws. For the first time, North Carolina was forced to take action and confirmed under oath that Duke 

Energy is violating State or Federal clean water laws or both everywhere it stores coal ash in the State and, under oath, that this 

polluting storage is a serious threat to the public health, safety, 

and welfare. 

Now a Federal criminal grand jury is investigating both Duke 

Energy and the State environmental agency. And as a result, Duke 

has pledged to clean up 4 of its 14 sites and to look at all the rest. 

In Tennessee, TVA continues, after Kingston, to store coal ash in 

unlined polluting pits. Local citizens groups enforce the Clean 

Water Act and only in response to that pressure, the State of Tennessee has now confirmed, under oath, that TVA has been and is 

violating Tennessee environmental laws by its coal ash storage on 

the Cumberland River near Nashville. 

In the South, we have seen that the people must have the power 

to protect themselves and to enforce the law. The citizen’s right to 

enforce a new EPA rule is a principal reason to have hope that 

these minimum Federal criteria will play a role in cleaning up a 

legacy of dangerous coal ash storage in our Southeast. Thank you. 

[The prepared statement of Mr. Holleman follows:] 

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Mr. SHIMKUS. Thank you, sir. 

I will now recognize myself for 5 minutes for the first round of 

questioning. 

The first question is for Ms. Johnson. 

How would your company make compliance decisions if the Florida Department of Environmental Protection sets requirements 

that are not exactly the same even if they are more stringent than 

the final rule? 

Ms. JOHNSON. Thank you, Mr. Chairman. 

It would be a challenge. Clearly, we would have to comply with 

both sets of rules and whatever the requirements would be. If one 

was more stringent than the other, we would look to comply with 

the stringent rule, except in this case, we would know that there 

would be the potential of having both regulatory regimes competing 

with each other for our compliance, not to mention the fact that I 

think that makes us vulnerable as an operator of a facility to thirdparty lawsuits that may question which actual regulation is the 

leading one. So it would be very challenging. 

Mr. SHIMKUS. And for Mr. Roewer, in the final rule, because it 

is quote/unquote ‘‘self-implementing,’’ EPA eliminated much of the 

flexibility of corrective action program as exists under all subtitle 

D programs. Could you please walk us through what flexibilities 

were eliminated and what that would mean for closure and corrective action? 

Mr. ROEWER. Thank you. There are a few instances where the 

Agency is contemplating a different approach to allow for a potentially risk-based decision to establish a point of compliance, to establish an alternative groundwater protection standard. 

For unlined units to even engage in corrective action and not 

have to shut down summarily, the Agency recognized that the regulatory oversight from a regulatory agency wouldn’t be there under 

a self-implementing rule—regulatory oversight to ensure that that 

risk-based decisionmaking is appropriately applied—and backed 

away from that. And instead we are faced with this self-implementing rule. So they take away a lot of the tools that State regulatory agencies have in prescribing cleanups, in prescribing corrective actions. 

Mr. SHIMKUS. Yes, and go back and briefly explain this riskbased decisionmaking, what it is, and how it may be incorporated 

into a State coal ash program. 

Mr. ROEWER. Well, a State could take into account whether there 

is a receptor downgrading it from the facility. You are seeing a release, but is it in fact presenting a risk to human health and the 

environment? And they can take that into account when they are 

making a decision about whether corrective action is needed or 

what type of correction action—corrective measures must be implemented by the utility. 

Mr. SHIMKUS. In your opinion, would EPA be able to approve a 

State program that incorporated any of the flexibility for corrective 

action, including a risk-based decisionmaking process? 

Mr. ROEWER. The rule is rather clear about what you have to 

achieve in corrective action. You must meet that standard. If you 

don’t meet that standard, you can, so I would have to answer no. 

I couldn’t see how EPA could say that a State program that incorVerDate Mar 15 2010 14:02 Jun 22, 2015 Jkt 037690 PO 00000 Frm 00110 Fmt 6633 Sfmt 6633 F:\114THCONGRESS\114_3EPACOALASHASK_061915\114-3_EPACOALASHPDFMADE
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porates that sort of risk-based decisionmaking is the equivalent of 

the Federal rule. 

Mr. SHIMKUS. Thank you. 

Mr. Forbeck, as an experienced State regulator yourself, I presume you have spoken with your counterparts in other States. Can 

you share your initial thoughts on the final rule, in particular the 

implementation? 

Mr. FORBECK. Well, as I testified, we have a real issue with the 

implementation because we feel it still would be a dual process. 

And it would be very confusing for the States. They have to decide 

whether or not, one, they are going to even open up their solid 

waste management plan, and even if they do, will that really even 

alleviate the dual regulatory regime? We do not think it will. 

Mr. SHIMKUS. And who testified in their opening statement—because we have a big panel—about the 6 months required under the 

EPA? 

Mr. FORBECK. That was ours. 

Mr. SHIMKUS. That was yours. 

Mr. FORBECK. Right. 

Mr. SHIMKUS. And then some States might take 18 months to do 

their solid waste plan based upon the laws in the States about 

hearings and notifications and the like. 

Mr. FORBECK. That is correct. The issue is it is not just a simple 

fix, that we open the plan and it is approved. It is a public participation process, which is fine, but that will take some extra time. 

Mr. SHIMKUS. And, finally, my last question is for Mr. Easterly. 

Your written testimony states that the opening and approval of a 

State solid waste management plan must be completed on an aggressive schedule that Indiana cannot meet. Can you explain why 

that is and whether you expect that would be a problem other 

States might have as well? And tell Governor Pence ‘‘hi’’ for us. 

Mr. EASTERLY. OK. Yes, other States will have that problem. 

Some States may or may not have the right authority. Some 

States, the rules have to go through the legislature before they can 

actually go into effect. 

In my State, I have to publish a first notice with a 30-day comment period that I am going to do a rule; a second notice with the 

words of the rule in it with another 30-day comment period. Then 

I have to publish a notice of a hearing in front of the environmental rules board for preliminary adoption; then one for final 

adoption. Then the attorney general gets days to review it, the 

Governor gets days to review it, and the secretary of state publishes it. And it takes 18 months. 

Mr. SHIMKUS. And I thought we were bad. 

So now the Chair recognizes the gentleman from New York, Mr. 

Tonko, for 5 minutes. 

Mr. TONKO. Thank you, Mr. Chair. 

And welcome, everyone. Unsafe disposal of coal ash poses very 

serious risks to human health and to the environment. A number 

of damage cases cited by EPA in the final rule is more than ample 

proof that current regulation isn’t working for many communities. 

In 2009, this subcommittee held a hearing on damage from coal 

ash disposal. We heard from victims who lost their homes, their 

businesses, and their health to coal ash contamination. In the time 

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since that hearing, problems have continued. Hopefully, the implementation of this rule will reduce these events and their costs 

going forward. 

For today, I would like to focus on a recent high-profile damage 

case and what it can teach us about compliance and about enforcement. 

Mr. Holleman, can you tell us a little bit about the Dan River 

spill? 

Mr. HOLLEMAN. Yes, Mr. Tonko. It has been a real tragedy, and 

how it happened illustrates how State enforcement and utility 

oversight by itself has not worked. And let me tell you why I say 

that. 

The basic cause is the Dan River site is an old site. Like virtually 

everyone in North Carolina, you have these old pits. And somebody, in the course of constructing that site, had the bright idea of 

putting a storm water pipe under one of these coal ash lagoons. 

Back in the 1980s, Duke had received in its own files—and the 

State had this—a dam safety report warning them about this problem of having a corrugated metal pipe under a coal ash lagoon. And 

in subsequent reports, there were constant references to be sure 

you check this pipe, be sure you check this pipe, be sure you watch 

what is coming out of this pipe. 

Well, instead, this old site, which, unfortunately, was built right 

on the banks of the Dan River, which is true of all these—most all 

these facilities, they are right on the banks of rivers, right upstream from a drinking water source—that pipe on Super Bowl 

Sunday, a year ago, broke, corroded, finally gave way and spewed 

coal ash and also 24 million gallons of coal ash polluted water into 

the Dan River. 

Subsequently, Duke has said it has done all it can do, and it has 

removed less than 10 percent of the ash in that river, thereby declaring defeat. In other words, once one of these spills occur, they 

cannot clean it up. 

Now, why were we even in a position that this should happen? 

Because we were engaging in the foolhardy practice of storing this 

industrial waste in a riverside lagoon, filled with water, held back 

by earth that leaked—earthen dikes that leaked with rotting infrastructure. Had that ash, as is happening in South Carolina today 

as we speak, had that ash instead been stored in a dry state, in 

a lined landfill like we require for simple municipal garbage, away 

from the river, this would never have happened. 

In other words, these sites are engineered or not engineered to 

be as dangerous as possible. The shocking thing is, the Dan River 

site is the smallest coal ash site that Duke has in the State of 

North Carolina. In that sense, in some odd way, we were fortunate. 

Mr. TONKO. Thank you. We have heard from other witnesses on 

your panel that States are best positioned to enforce coal ash disposal requirements. Do you think States have proven their ability 

to effectively enforce coal ash rules? 

Mr. HOLLEMAN. Well, just take the Dan River for example. The 

State had never required a cleanup. In fact, believe it or not, 6 

months before the spill, in response to a notice a citizen sent, the 

State was forced to file a lawsuit. Six months beforehand, it stated 

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lating State and Federal clean water laws at that site and that if 

those things were not corrected, it was a serious threat to public 

health, safety, and welfare. And not one thing was done in the ensuing 6 months to get the ash moved out of that site. That is one 

illustration. 

Mr. TONKO. Mr. Schaeffer, do you agree with that assessment? 

Mr. SCHAEFFER. I do. We have had similar experiences in Pennsylvania. To take an example, the citizens around the Little Blue 

Run impoundment felt like they couldn’t get the time of day—— 

Mr. SHIMKUS. Turn the microphone on, please. 

Mr. SCHAEFFER. They felt like they weren’t getting a response 

from the State and response to their repeated complaints. We filed 

notice of intent on their behalf to bring a suit. The State turned 

around, decided the site presented an imminent and substantial 

endangerment, required its closure and required, we think, a pretty 

aggressive cleanup and the State did credit citizens for getting that 

resolved. 

Mr. TONKO. Thank you. 

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

The Chair now recognizes Mr. Harper from Mississippi. 

Mr. HARPER. Thank you, Mr. Chairman. 

I am going to yield my time to the gentleman from West Virginia, Mr. McKinley. 

Mr. MCKINLEY. Thank you, Mr. Harper. 

I appreciate that. A whole host of subjects here with this panel 

that we have before us, and one of them, one of the issues that has 

been dear to us in the panhandle of West Virginia has been the 

Little Blue Run. We have done—Mr. Schaeffer, despite your comments, we had that, we had the Havens here. We have had people 

that have experienced that. We want to hear that. We want to 

make sure that we are sensitive to that. So this panel, this committee had done that and maybe should continue to do that even 

more, but they were here to testify about what the situations were 

like, and I thought it was a very moving testimony from their part. 

But Little Blue Run is now under your group, Mr. Holleman, I 

guess the Environmental Integrity Project, or—that is yours? OK. 

You put out a report that was called, ‘‘In Harm’s Way: Lack of Federal Coal Ash Regulations Endanger Americans and Their Environment,’’ and that was given to the Pennsylvania because they are 

the ones primarily responsible for the Little Blue Run. And they 

did a very exhaustive study because they want to respond. 

You know, these allegations of people, these threats going on, 

they came back and they said, based on the review of the information in this report for this particular facility, DEP of Pennsylvania 

concludes that the allegations regarding groundwater and surface 

water contamination are unfounded. 

So I want us to be careful that we can come here and make 

these—you testify to these. There are adequate responses, and 

there are recourses for it and DEP looked into it. I have pursued 

this because I think it is said, we need to be careful about that. 

I have been in touch with Pennsylvania about their—how they 

monitored Little Blue, and West Virginia as well, and we see that 

they levied fines. They have indeed done what they said they were 

going to do, and that was to enforce the law and the requirements 

110 

with it. So I think that it appears to me from their reports and 

their letters and their correspondence, they are trying to be good 

stewards of the environment. And they are enforcing that. 

So I am just—so I am curious. We passed legislation in the 

112th, 113th that dealt with the existing and future impoundments. Lined, unlined, addressing those issues, we included in that 

language, because I have heard you say it several times here, about 

siting restrictions or in that language but didn’t your group oppose 

the bill? Either one of you. 

Mr. SCHAEFFER. We certainly did and would continue to do that. 

The siting restrictions in that legislation we don’t think were comparable to the rule the EPA adopted. 

Mr. MCKINLEY. If I can recover my time. The reason that I raise 

these issues to you is that—— 

Mr. SCHAEFFER. I could answer your question if I could get 

that—— 

Mr. MCKINLEY. If I could recover my time, please, on it. 

Mr. SCHAEFFER. OK. 

Mr. MCKINLEY. Is that if we don’t pass the legislation, then we 

stay the way we have been since the 1960s, and that hasn’t 

worked. That is what has caused a lot of these issues. We are trying to find a way to get a resolution, and we are trying to find a 

solution. Here is a bill. If we have to tweak it or so, but to defeat 

it, as they did over in the Senate, that wasn’t productive. We had 

a bill. We are going to do it again this year, and we are going to 

see it, and I hope that people have some concerns about it work 

with us because we have got to reach certainty. 

I heard all the testimony. We have got to find a way to close the 

door so the people that are making the investment in their respective facilities know that tomorrow they will be able to continue to 

operate. So it is very important that we pass the legislation to close 

up these loopholes, close up so many issues that have defined us 

and made it a negative. 

So, with that, I thank you for your testimony. I hope that you 

will continue to work with us, all of you, the entire panel as we 

perfect this, if we need to go even further with it. So, with that, 

I yield back the balance of my time. 

Mr. SHIMKUS. The gentleman yields back his time. 

Without objection, I ask unanimous consent to allow Mr. Schaeffer to respond for a minute to—— 

Mr. SCHAEFFER. Thank you. 

Mr. SHIMKUS. We kind of abide by rules. 

Mr. McKinley gets another 5 more minutes, so we are going to 

let you interject here before he goes next again. 

Mr. SCHAEFFER. I very much appreciate that, Mr. Chairman. I 

will be quick. 

It really is useful to compare what Pennsylvania said in its complaint in 2012 about the condition of that site to what they told 

EPA the condition of that site was during the rulemaking process. 

It is really kind of different. You will see very different statements. 

You will the State saying the sites leaked. You will see them saying that the company has—their practice has presented imminent 

and substantial danger to the environment. You don’t see any of 

that coming through in the testimony to EPA. 

111 

The enforcement action the State took—and I just don’t want 

this point to get lost—came after the citizens filed a notice of their 

intent to sue the company for those violations, not before. It came 

after. Now, Pennsylvania, if they would like to tell you they were 

going to do it anyway, I would be happy to hear that. That is great, 

but we didn’t get that feeling. 

Mr. SHIMKUS. Yes,fortunately, you have got 17 seconds left. 

We will allow Mr. Forbeck from the great State, the Commonwealth of Pennsylvania, to respond. 

Mr. FORBECK. Yes. Actually, I am very family with the Little 

Blue Run. This is for me—for Pennsylvania. I actually signed the 

consent decree going through the procedures to close this facility. 

We actually had been looking at that site long before the suit 

was filed. And if anything, that is what is the beauty of the system 

that we have in place is that we have groundwater monitoring; we 

have air monitoring; we have all these factors that are in place 

that we are constantly looking at a facility. We are constantly looking at the compliance of that, and, therefore, it is a moving target. 

At one point, it may be one thing; at another in the future, it may 

be another. But we have those monitoring points in place that can 

tell that. 

So, yes, we actually had started enforcement procedures before 

that, and because of this and the issues that we found, we are— 

they are actually closing the largest coal combustion impoundment 

in the United States in an environmentally safe manner. 

Mr. SHIMKUS. Thank you very much. 

Now, because of the magic of our rules, the Chair recognize the 

gentleman from West Virginia. 

Are you done? 

Mr. MCKINLEY. I am done. Thank you. 

Mr. SHIMKUS. OK. Thank you. 

The Chair now recognizes the gentleman from North Dakota, Mr. 

Cramer for 5 minutes. 

Mr. CRAMER. Thank you, Mr. Chairman. 

And thank you all of the panelists. I just want to—I want to get 

to one very specific point. To me, it is obvious that the patchwork, 

the inconsistency potential, the uncertainty that would be created 

by self-implementation and enforcement by courts, that is a problem. That is a problem for me on lots of fronts. But I would like 

at least the two regulators to speak to the issue. 

If we were to tighten that up, put State primacy in place, as it 

is in so many areas like this, and codify, you know, codify the language in the EPA and certainly the definition of nonhazardous, do 

the citizens of your States or any of our States lose their ability to 

appeal, to attend the hearings, to complain? I mean, it is sort of 

like we are talking about either citizens have rights or the bureaucracy has rights and the two can’t go hand in hand because, as a 

former regulator myself, frankly, we heard more from citizens in 

these hearings than we heard from any other person. To me, the 

local and State level is where you get more citizen interaction, not 

less, so could you—somebody elaborate on that for me, and then if 

there is time left, I certainly would welcome you as well to comment on that. 

112 

Mr. FORBECK. As far as ASTSWMO and our members, we feel— 

we are all in favor of minimum Federal standards. We feel that the 

codification of it and the certainty of it is the key point that was 

missing in all this. No, we do not think that citizens will lose their 

ability to have public forum or further appealing of decisions. No, 

we feel that will continue. 

Mr. EASTERLY. And the thing that would help by having a Federal law—and certainly the EPA rules will help—is that there are 

a number of States, luckily not including my own, where it is not 

allowed to have a more stringent than the regulation in the Federal Government, so having this Federal rule and then having a 

law that says ‘‘you must do this,’’ I think, will help a lot so that 

those States will have this program implemented at the State level. 

And you are right, at the State level, we have people on the 

ground, in the field for the citizens to talk to, and they certainly 

can come, in our case, to Indianapolis, and they have legislators 

out there, and they do have a lot of input. 

Mr. CRAMER. So, Mr. Schaeffer and Mr. Holleman, same question, because it is a concern to me—— 

Mr. HOLLEMAN. Right. 

Mr. CRAMER [continuing]. Frankly, what you raise. I just want 

to ensure that what we are doing would not in any way negate citizens access. 

Mr. HOLLEMAN. It is a good—is my microphone on? It is a good 

question, but we are really talking about two entirely different 

things. Citizens have a right—have the right under Federal and 

State statutes to comment on, to be present at hearings, as you 

saw as a State commissioner, in determining whether a permit is 

put in place or what regulation is adopted. That is true. That is 

not what we are talking about. 

We are talking about once your commission, or in our State environmental commissions, put in place a permit or regulation and 

then the utility violates it. After the public has had input, they just 

violate it; they don’t comply. And then the State agency, for whatever reason, which we have seen repeatedly, refuses to enforce the 

very permits, laws, and regulations that had been produced 

through this public comment period. So it makes it pointless. 

You go comment. You go through this process, which is important, as you say, but then the very State government that put this 

in place refuses to enforce what the citizens participated in creating. 

In fact, in our State, our public service commission, which held 

hearings on this topic, one of the commissioners expressed shock 

that Duke had not yet moved its ash from one of the sites that was 

present there and was not complying with the permit and regs that 

our State regulatory agency put in place. 

Mr. CRAMER. So did this shocked commissioner have any opportunity to do something about it? In other words—— 

Mr. HOLLEMAN. No, he did not. 

Mr. CRAMER [continuing]. We have State legislators, I assume 

they are elected. Governors are elected. In the case of North Dakota, the public service commission is elected. So I am just seeing 

that these things, including enforcement, being closer to the people, 

113 

seems to me to be better for the people than removing it from the 

people. 

Mr. HOLLEMAN. Well, no, it is in the hands of the people. The 

people who are taking this enforcement action are local community 

people going to their local State or local Federal courthouse. These 

are people that live next door to you and me. These are people in 

the community. They have to be to even bring this suit. 

Mr. CRAMER. I don’t see this law—or this principle being—violating that—— 

Mr. HOLLEMAN. As long as you all don’t fool with or mess with 

the citizen’s right to sue under RCRA, we still have that right to 

sue. And the citizens have the right to go forward and see that the 

law is enforced, but if you were to affect that, you are taking rights 

away from the people and saying they belong only to a bureaucracy 

which may or may not act for political—— 

Mr. SHIMKUS. And the gentleman’s time is expired. 

I just want to assure people that there is no discussion even in 

the last bill of alleviating or taking the citizen’s right to sue out 

of RCRA, so you could rest comfortably in that. 

Votes are being called. We still have one Member who wants to 

ask some questions, so the Chair will—— 

Mr. LATTA. Well—— 

Mr. SHIMKUS [continuing]. Recognize Mr. Latta for 5 minutes. 

Mr. LATTA. I will be brief, but, again, thanks for the panel and 

your patience, especially when we have a different series of votes 

today. 

If I could just kind of go down the line real quickly with a few 

of you. You know, there has been some discredited discussion here 

today as to the implementation, the uncertainty as to certain 

things that have to be done. I am just kind of curious, starting with 

Mr. Easterly. How much input did you have with the EPA when 

they were implementing the rule? 

Mr. EASTERLY. They are not implementing yet, but when 

they—— 

Mr. LATTA. I am sorry. When they were formulating. 

Mr. EASTERLY. We sent in comments. Certainly, at ECOS, we 

had a number of discussions with them of what we would like to 

see. And some of it is in, and some of it is not. 

Mr. LATTA. OK. When you say ‘‘some of it is in and some of it 

is not,’’ what percentage would that be? Just kind of ballpark. 

Mr. EASTERLY. Well, we would like to have subtitle D. We, along 

with other people, are disappointed at the way it is being implemented. 

Mr. LATTA. OK. 

Mr. FORBECK. Well, at ASTSWMO, we shared very similar feelings. We were involved heavily with the correspondence and comments to EPA about the rule, and as was just said, we do appreciate B and D. It is the implementation under the solid waste management plan that was our concern. It does not have certainty that 

we wanted to see. 

Mr. LATTA. OK. Just switching gears real quick. The question 

again that I had asked the administrator before he finished up his 

testimony today, on the certainty, especially on the beneficial use, 

Ms. Johnson, especially you in your testimony, especially with the 

114 

company that is really located near you to make the board, do you 

think there is certainty out there right now, and do you think that 

there could be changes in the future from the EPA? 

Ms. JOHNSON. I believe, based on what EPA has stated, that they 

clearly have the opportunity to revisit their determination on nonhazardous versus hazardous for CCRs, and that creates uncertainty. And I will tell you, in my experience, that for the beneficial 

use community, for our plant that provides a significant portion of 

our CCRs to the beneficial use community, that uncertainty is a 

problem, and a later designation or determination of hazardous is 

going to put that beneficial use process at risk. 

Mr. LATTA. Mr. Adams. 

Mr. ADAMS. I think in terms of the effect on the market so far, 

it is too early to tell if there has been a positive effect. We have 

heard many comments that people are happy that EPA has gone 

with subtitle D, but it is troubling to have that language in the 

preamble that they may want to go back and revisit the Bevill exemption. Again, they said it in 1993; they said it in the year 2000; 

they now said it again that coal ash didn’t warrant hazardous 

waste management. But then they come back and say, well, we 

might need to revisit again. We need action by Congress to put an 

end to that chain of events. 

Mr. LATTA. Mr. Easterly, how about you on the whole issue of 

the beneficial use and the certainty? 

Mr. EASTERLY. I personally don’t think it is certain when you say 

that you are going to reopen it. In history, EPA has changed, for 

example, the maximum contaminant levels in drinking water, 

which since the hazardous waste leachate test is 100 times that 

standard, suddenly makes something that used to be nonhazardous 

into hazardous. And I think that can change at any time in the future, and all businesses have to asses that risk and what could 

happen to them. 

Mr. LATTA. And just a little off topic, Mr. Easterly—because I 

border Indiana, I have about halfway down—what is Indiana’s percentage of coal for your electricity? 

Mr. EASTERLY. It is going down, but I think it is still over 85 percent. It might be over 90. 

Mr. LATTA. I remember it used to be around 90 percent in Ohio, 

especially in my area, it is around 73 percent. 

And, with that, Mr. Chairman, in the interest of time, I yield 

back. 

Mr. SHIMKUS. I thank the gentleman. 

And before I adjourn, I need to ask unanimous consent to accept 

a letter by the Prairie River Network, located in Champaign, Illinois, and accompanying attachments from local communities and 

resolutions. 

Without objection, so ordered. 

[The information appears at the conclusion of the hearing.] 

Mr. SHIMKUS. And I want to thank you all for coming. Great 

hearing. Look forward to working with you as we move forward, 

and this hearing is adjourned. 

[Whereupon, at 12:54 p.m., the subcommittee was adjourned.] 

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