U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

79–850 2013

THE ROLE OF THE STATES IN PROTECTING 

THE ENVIRONMENT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ENVIRONMENT AND THE 

ECONOMY 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

FEBRUARY 15, 2013 

Serial No. 113–7 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

(II) 

COMMITTEE ON ENERGY AND COMMERCE 

FRED UPTON, Michigan 

Chairman 

RALPH M. HALL, Texas 

JOE BARTON, Texas 

Chairman Emeritus 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

JOSEPH R. PITTS, Pennsylvania 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MIKE ROGERS, Michigan 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

Vice Chairman 

PHIL GINGREY, Georgia 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BILL CASSIDY, Louisiana 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

CORY GARDNER, Colorado 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

GUS M. BILIRAKIS, Florida 

BILL JOHNSON, Missouri 

BILLY LONG, Missouri 

RENEE L. ELLMERS, North Carolina 

HENRY A. WAXMAN, California 

Ranking Member 

JOHN D. DINGELL, Michigan 

Chairman Emeritus 

EDWARD J. MARKEY, Massachusetts 

FRANK PALLONE, JR., New Jersey 

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 

ANTHONY D. WEINER, New York 

JIM MATHESON, Utah 

G.K. BUTTERFIELD, North Carolina 

JOHN BARROW, Georgia 

DORIS O. MATSUI, California 

DONNA M. CHRISTENSEN, Virgin Islands 

KATHY CASTOR, Florida 

JOHN P. SARBANES, Maryland 

JERRY MCNERNEY, California 

BRUCE L. BRALEY, Iowa 

PETER WELCH, Vermont 

BEN RAY LUJAN, New Mexico 

PAUL TONKO, New York 

(III) 

SUBCOMMITTEE ON ENVIRONMENT AND ECONOMY

JOHN SHIMKUS, Illinois 

Chairman 

PHIL GINGREY, Georgia 

Vice Chairman 

RALPH M. HALL, Texas 

ED WHITFIELD, Kentucky 

JOSEPH R. PITTS, Pennsylvania 

TIM MURPHY, Pennsylvania 

ROBERT E. LATTA, Ohio 

GREGG HARPER, Mississippi 

BILL CASSIDY, Louisiana 

DAVID B. MCKINLEY, West Virginia 

GUS M. BILIRAKIS, Florida 

BILL JOHNSON, Missouri 

JOE BARTON, Texas 

FRED UPTON, Michigan, ex officio 

PAUL TONKO, New York 

Ranking Member 

FRANK PALLONE, JR., New Jersey 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

JERRY MCNERNEY, California 

JOHN D. DINGELL, Michigan 

JANICE D. SCHAKOWSKY, Illinois 

JOHN BARROW, Georgia 

DORIS O. MATSUI, California 

HENRY A. WAXMAN, California, ex officio 

(V) 

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 

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

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

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

Hon. Joe Barton, a Representative in Congress from the State of Texas, 

opening statement ................................................................................................ 7 

Prepared statement .......................................................................................... 8 

Hon. Henry A. Waxman, a Representative in Congress from the State of 

California, opening statement ............................................................................. 9 

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

Hon. Janice D. Schakowsky, a Representative in Congress from the State 

of Illinois, opening statement .............................................................................. 11 

Prepared statement .......................................................................................... 11 

WITNESSES

Harold R. Fitch, Supervisor of Mineral Wells, and Chief, Office of Oil, Gas 

and Minerals, Michigan Department of Environmental Quality ..................... 12 

Prepared statement .......................................................................................... 15 

Answers to submitted questions ...................................................................... 128 

Matthew J. Lepore, Director, Colorado Oil and Gas Conservation Commission 18 

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

Answers to submitted questions ...................................................................... 143 

Sarah Pillsbury, Administrator, Drinking Water and Groundwater Bureau, 

New Hampshire Department of Environmental Services ................................. 38 

Prepared statement .......................................................................................... 40 

Answers to submitted questions ...................................................................... 163 

Jeffery Steers, Director, Land Protection and Revitalization Division, Virginia 

Department of Environmental Quality .............................................................. 51 

Prepared statement .......................................................................................... 54 

Answers to submitted questions ...................................................................... 167 

Teresa Marks, Director, Arkansas Department of Environmental Quality ........ 61 

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

Answers to submitted questions ...................................................................... 173 

Hon. Pricey Harrison, North Carolina House of Representatives ....................... 70 

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

Answers to submitted questions ...................................................................... 189 

Hon. Michael A. Sesma, Council Vice President, City of Gaithersburg, Maryland ........................................................................................................................ 83

Prepared statement .......................................................................................... 86 

Answers to submitted questions ...................................................................... 197 

SUBMITTED MATERIAL

Statement of 7 environmental groups .................................................................... 119 

Statement of Patrick Parenteau ............................................................................. 121 

Statement of Susan Parker Bodine ........................................................................ 125 

(1) 

THE ROLE OF THE STATES IN PROTECTING 

THE ENVIRONMENT 

FRIDAY, FEBRUARY 15, 2013 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON ENVIRONMENT AND ECONOMY, 

COMMITTEE ON ENERGY AND COMMERCE

Washington, DC. 

The subcommittee met, pursuant to call, at 9:29 a.m., in room 

2123, Rayburn House Office Building, Hon. John Shimkus, (chairman of the subcommittee) presiding. 

Present: Representatives Shimkus, Gingrey, Hall, Murphy, 

Latta, Cassidy, McKinley, Bilirakis, Johnson, Barton, Upton (ex 

officio), Tonko, Green, DeGette, McNerney, Schakowsky, Barrow, 

and Waxman (ex officio). 

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

Press Secretary; Matt Bravo, Professional Staff Member; Allison 

Busbee, Policy Coordinator, Energy and Power; Jerry Couri, Senior 

Environmental Policy Advisor; David McCarthy, Chief Counsel, Environment/Economy; Andrew Powaleny, Deputy Press Secretary; 

Tina Richards, Counsel, Environment; Krista Rosenthall, Counsel 

to Chairman Emeritus; Chris Sarley, Policy Coordinator, Environment and Economy; Lyn Walker, Coordinator, Admin/Human Resources; Phil Barnett, Minority Staff Director; Alison Cassady, Minority Senior Professional Staff Member; Jacqueline Cohen, Minority Counsel; Greg Dotson, Minority Staff Director, Energy and Environment; Caitlin Haberman, Minority Policy Analyst; and Karen 

Lightfoot, Minority Communications Director and Senior Policy Advisor. 

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

Mr. SHIMKUS. Let’s see if we can get the doors closed, and I know 

the folks in the hallway will be happy to hear. 

Good morning. Thank you all for being punctual. Who knows 

when votes will occur, they are going to be earlier today, so we are 

going to try to get through as much as possible, and then we will 

see where we go from there. 

The subcommittee will now come to order. I would like to welcome all the members of the subcommittee to our first hearing in 

the 113th Congress. I want to say a special welcome to our new 

ranking member, Mr. Tonko, as well as our new vice chairman, Dr. 

Gingrey, who is late, not a good sign, and all our new Republican 

and Democrat members. 

2 

Today’s hearing focuses on the important role that States play in 

environmental protection under current law. This hearing will help 

raise awareness and set the stage for future discussions we are 

going to have on environmental protection. 

Many of us get caught up with what the U.S. EPA thinks or 

what it can do and fail to focus on States and what they can and 

must do. The States are by no means junior regulators or the 

minor leagues of environmental protection. Rather, their plate is 

twice as full. To carry out Federal environmental law, States have 

a lot of delegated authority, but States also have their own protective laws, often beyond anything the Federal Government has 

asked. 

State regulators have every bit the same educational background, expertise, desire to protect the environment, and sense of 

professionalism as any employee at the EPA, with the added bonus 

of actually living in the communities they are trying to make safe. 

They intimately know the terrain being regulated. 

Some people might suggest that States lack the will to enforce 

their laws or that are reluctant to pass anything serious. I think 

that answer is not fair, and I think history shows that States have 

generally acted first on matters before the Federal Government has 

stepped in to do something. In this fast-paced, technology-driven 

society, a static regulatory regime cannot respond to innovations 

nor complex problems and challenging geologies. Let me offer a few 

examples of what I mean from issues familiar to our committee. 

In the State of Maryland, there was a terrible coal ash problem. 

The State did not sit by powerless. Rather, in December 2008, the 

Maryland Department of Environmental issued one of the most robust sets of coal ash rules in the country. Maryland is not the only 

State. Pennsylvania and Wisconsin have demonstrated strong programs that are serious, flexible, and successful. 

On the issue of hydraulic fracturing, Colorado has shown it can 

move two major changes to its rules on hydraulic fracturing in a 

matter of months. Ohio has also jumped in to address seismicity 

and other fracturing-related issues important to its State. Even 

North Carolina, which has not fractured a single gas well in the 

entire State, is moving legislation to place restrictions on this practice. Back in Illinois, we are home to the New Albany shale gas formation with a footprint that is much of the southern part of the 

State and much of my congressional district. 

At the State level, they are quickly realizing the jobs and positive 

economic impact of hydraulic fracturing and moving steadily towards regulations. While this play is still unproven, estimates of 

upward to 47,000 jobs annually and $9.5 billion of economic impact 

for Illinois if the New Albany shale potential is realized. 

It is well known that States, rather than the EPA, have been 

dominating the regulatory space for hydraulic fracturing for decades. When you consider the amount of additional resources and 

new experiences that would be needed to infuse into the EPA to replace what States already do well, it defies conventional budgetary 

wisdom that this is a good public policy move. I am not trying to 

suggest that the EPA does not have an important role to play in 

protecting the environment, but when you contrast the nimbleness 

and commitment of the States with the cumbersome and lengthy 

3 

process which characterizes U.S. EPA’s one-size-fits-all approach, 

trusting the States a little more seems the right thing to do. 

I know some of my colleagues here will dismiss these arguments 

and suggest coal and gas need even more regulation because they 

are, quote-unquote, ‘‘dirty,’’ and we need cleaner fuels. I would submit to my colleagues that if this is really about environmental protection and not energy use manipulation, we must acknowledge 

that every fuel production method has risk. 

On Monday, ABC News ran a story from the Associated Press 

about the negative environmental externalities with solar power. It 

read, Fueled partly by billions in government incentives, the industry is creating millions of pounds of polluted sludge and contaminated water. Companies must transport it by truck or rail to waste 

facilities hundreds and in some cases thousands of miles away. AP 

compiled a list of 41 solar makers in California, and based on State 

data, 24 of them did not report their waste. The State records show 

that 17 companies, which had 44 manufacturing facilities in California, produced 46.5 million pounds of sludge and contaminated 

water from 2007 through the first half of 2011. Roughly 97 percent 

of it was taken to hazardous waste facilities throughout the State, 

but more than 1.5 million pounds were transported to nine other 

States, and though it could be manifested, AP reports 2.1 million 

tons are unaccounted. Even though EPA and this administration 

are bullish on solar technologies, the same level of Federal data 

does not exist. 

I want to welcome the State officials who have joined us today 

from across the country to share their experience, perspective, and 

devotion to their States’ environments. We have representatives 

from State groundwater, drinking water, oil and gas, solid, and 

hazardous waste offices as well as their agency heads. We also 

have a State legislator and a city council member. 

I now yield to Mr. Tonko, our subcommittee’s ranking member, 

for his opening statement. 

[The prepared statement of Mr. Shimkus follows:] 

PREPARED STATEMENT OF HON. JOHN SHIMKUS

I would like to welcome all the members of the subcommittee to our first hearing 

in the 113th Congress. I want to say a special welcome to our new Ranking Member, Mr. Tonko, as well as our new Vice-Chair Dr. Gingrey and all our new Republican and Democrat members. 

Today’s hearing focuses on the important role that states play in environmental 

protection under current law. 

This hearing will help raise awareness and set the stage for future discussions 

we are going to have on environmental protection. Many of us get caught up with 

what the U.S. EPA thinks or what it can do and fail to focus on the states and what 

they can and must do. 

The states are by no means, ‘‘junior regulators’’ or the minor leagues of environmental protection. Rather, their plate is twice as full. To carry out federal environmental law, states have a lot of delegated authority. But states also have their own 

protective laws. Often, beyond anything the federal government has asked. 

State regulators have every bit the same educational background, expertise, desire to protect the environment, and sense of professionalism as any employee at 

EPA, with the added bonus of actually living in the communities they are trying 

to make safe. They intimately knowing the terrain being regulated. 

Some people might suggest states lack the will to enforce their laws or they are 

reluctant to pass anything serious. I think that answer is not fair, and I think history shows the states have generally acted first on matters before the federal government has stepped in to do something. 

4 

In this fast-paced technology driven society; a static regulatory regime cannot respond to innovations nor complex problems and challenging geologies. Let me offer 

a few examples of what I mean from issues familiar to our committee. 

In the state of Maryland, there was a terrible coal ash problem. The state did not 

sit by powerless. Rather, in December 2008 the Maryland Department of the Environment issued one of the more robust sets of coal ash rules in the country. Maryland is not the only state, Pennsylvania and Wisconsin have demonstrated strong 

programs that are serious, flexible, and successful. 

On the issue of hydraulic fracturing, Colorado has shown it can move 2 major 

changes to its rules on hydraulic fracturing in a matter of months. Ohio has also 

jumped in to address seismicity and other fracturing-related issues important to its 

state. Even North Carolina, which has not fractured a single gas well in the entire 

state, is moving legislation to place restrictions on this practice. 

Back in Illinois, we are home to the New Albany shale gas formation with a footprint that’s much of the southern part of the state. At the state level they are quickly realizing the jobs and positive economic impact of hydraulic fracturing and moving steadily towards regulations. 

While this ‘‘play’’ is still unproven, estimates have upwards of 47,000 jobs annu- ally and $9.5 billion of economic impact for Illinois if the New Albany Shale’s potential is realized. 

It is well-known that the states, rather than EPA, have been dominating the regulatory space for hydraulic fracturing for decades. When you consider the amount 

of additional resources and new experience that would need to be infused into EPA 

to replace what states already do well, it defies conventional budgetary wisdom that 

this is a good public policy move. 

I am not trying to suggest EPA does not have an important role to play in protecting the environment, but when you contrast the nimbleness and commitment of 

the states with the cumbersome and lengthy process which characterizes US EPA’s 

one-size-fits-all approach, trusting the states a little more seems the right thing to 

do. 

I know some of my colleagues here will dismiss these arguments and suggest coal 

and gas need even more regulation because they are ‘‘dirty’’ and we need ‘‘cleaner’’ 

fuels. I would submit to my colleagues that if this is really about environmental protection—and not energy use manipulation, we must acknowledge that every fuel 

production method has risks. 

On Monday, ABC News ran a story from the Associated Press above the negative 

environmental externalities with solar power. 

It read: Fueled partly by billions in government incentives, the industry is creating ‘‘millions of pounds of polluted sludge and contaminated water.’’ 

‘‘Companies must transport it by truck or rail to waste facilities hundreds and, 

in some cases, thousands of miles away. 

AP compiled a list of the top 41 solar makers in CA, and based on state data, 

24 of them did not report their waste. The state records show the 17 companies, 

which had 44 manufacturing facilities in California, produced 46.5 million pounds 

of sludge and contaminated water from 2007 through the first half of 2011. Roughly 

97 percent of it was taken to hazardous waste facilities throughout the state, but 

more than 1.4 million pounds were transported to nine other states. And, though 

it could be manifested, AP reports 2.1 million tons are unaccounted. 

Even though EPA and this administration are bullish on solar technologies, the 

same level of federal data does not exist. 

I want to welcome the state officials who have joined us today from across the 

country to share their experience, perspective, and devotion to their states’ environments. We have representatives from state groundwater, drinking water, oil and 

gas, and solid and hazardous wastes offices as well as their agency heads. We also 

have a state legislator and a city council member. 

I now yield to Mr. Tonko, our subcommittee’s ranking member for his opening 

statement. 

# # # 

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

Mr. TONKO. Thank you, Mr. Chair, and it is a pleasure to join 

with you, Chairman Shimkus, and our expert witnesses, who will 

share their thoughts with us this morning. Thank you to the entire 

5 

panel for making the effort, and to join with the ranker of our committee, with Ranker Waxman and our team, and all of the members of the subcommittee. While we will not always be in agreement, I hope that we can find common ground to move this Nation 

forward on important issues in the jurisdiction of this committee, 

this subcommittee. 

Today’s hearing revisits an issue that we have been discussing 

since the day of the 13 original colonies deciding to band together 

and declare their independence from Great Britain. Over the years, 

we have continued to struggle to define the proper balance between 

Federal and State regulation. I expect we will continue to debate 

this for many years to come. Each one of the individual States we 

represent is different, to be sure, and the States have a responsibility to their citizens to manage their resources and their economies, but we know that from our Nation’s history, decisions made 

in one State often have impacts beyond that particular State’s borders. Just as we have State laws to ensure consistency among the 

towns, villages, counties, and regions within States, Federal law 

guarantees minimum standards for all of our Nation’s citizens. 

They promote good relations amongst neighboring States, and they 

ensure that shared resources—water, air, land, forests, wildlife, 

and fisheries to name a few—remain viable and available for everyone’s beneficial use. 

The environment of any one State does not fit discreetly within 

its political boundaries. New York, my home State, shares its borders with five other States and with the Nation of Canada. We 

share our watersheds and airsheds with an additional six States. 

While New York has strong environmental protections, our environment is not only dependent upon how New York State manages 

its resources. It also depends upon the choices made by those other 

neighboring States in our region and by Canada. 

The system we have today was put in place largely as a result 

of the experience we had prior to the adoption of sound Federal environmental laws. That experience was not good. It involved polluted surface and groundwater, acid rain, smog, soil erosion, and 

collapsed fisheries as a result of a States-only approach to environmental protection. Most of these environmental problems have 

been reduced significantly by Federal laws implemented in cooperation with the States. 

I would also point out that we have accomplished these environmental success stories while our population and economy grew. We 

do not have to choose between a healthy environment and a 

healthy economy. Indeed, one complements the other, and we know 

that public health is not a luxury; it is indeed a necessity. 

Just last month, a number of reports appeared about the terrible 

pollution problems in China, problems that are now too large to ignore. The result is increased hospitalizations and emergency shutdowns of some factories. The Chinese are discovering what we 

learned a long time ago: Unfettered industrial activity results in 

widespread serious pollution that does, indeed, impact public 

health and the economy. 

Clean air, clean water, and healthy soils are fundamental building blocks of a sound economy and a healthy society. With creativity and willing partners in the private sector, we can do even 

6 

better. We do not want to go backward. Forward is our only direction. 

Pollution prevention is always less costly than pollution cleanup. 

Our laws are not perfect, and their implementation is not perfect, 

but the public is well served by them, and we should be working 

to improve and strengthen them for the sake of public health and 

resource protection. 

Every citizen in this Nation deserves to live in a community with 

clean air and clean water. Federal and State partnership in this effort has made this guarantee a reality and delivered real results. 

We should build on this success to address new challenges, like climate change. Now is not the time to reverse course. 

I look forward to hearing from our witnesses, expert that they 

are, this morning. 

Thank you all for agreeing to appear before our subcommittee 

today. 

And again thank you, Mr. Chairman. I look forward to working 

with you and our fellow committee members, subcommittee members. 

Mr. SHIMKUS. Thank you, Mr. Tonko. 

And I look forward to working with you, too. 

Now I would like to yield to the chairman of the full committee, 

Mr. Upton, for 5 minutes. 

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

Mr. UPTON. Thank you, Mr. Chairman. 

You know, we are eager to better understand the role of the 

States in conserving resources and protecting the health of their 

residents. 

And it is a special pleasure to see Hal Fitch, who manages Michigan’s DEQ’s Office of Oil, Gas and Minerals. Welcome. 

Effective regulatory management of resource development is crucial. Excess restrictions cost jobs and revenue, but inadequate oversight and regulation could turn a State’s residents against resource 

development. So we have got to strike the right regulatory balance. 

Most agree that for policy decisions to be fair, they have to be 

made at the appropriate level of government, but what is that 

level? It is the one closest to the people but still has enough authority to carry out the policy. If the decision affects only folks in 

Kalamazoo, it should be made by the Kalamazoo City Commission. 

If it also affects others in Michigan, it ought to be made by State 

officials. Only those policies that impact citizens from more than 

one State should be made by the Federal Government. 

Today’s hearing gives us a chance to see environmental protection through the eyes of State officials. We are going to see firsthand that they, A, care about the environments in which they live 

and work; B, have professional experience and local expertise; C, 

seek the right balance between environmental protection and economic opportunity; and, lastly, take seriously their legal obligations 

under both State and Federal law. It is important to understand 

the important roles States play in protecting the environment, and 

that is what this hearing is about. 

And I yield to my friend, Mr. Barton. 

7 

[The prepared statement of Mr. Upton follows:] 

PREPARED STATEMENT OF HON. FRED UPTON

We are eager to better understand the role of the states in conserving resources 

and protecting the health of their residents. It’s a special pleasure to see Hal Fitch, 

who manages the Michigan DEQ’s Office of Oil, Gas, and Minerals. 

Effective regulatory management of resource development is crucial. Excess restrictions costs jobs and revenue, but inadequate oversight and regulation could 

turn a state’s residents against resource development. We must strike the right regulatory balance. 

Most people agree that for policy decisions to be fair, they must be made at the 

appropriate level of government. But what is that level? It’s the one closest to the 

people but still has enough authority to carry out the policy. If the decision affects 

only people in Kalamazoo, it should be made by the Kalamazoo City Commission; 

if it also affects others in Michigan, it should be made by state officials. Only those 

policies that impact citizens from more than one state should be made by the federal 

government. 

Today’s hearing gives us a chance to see environmental protection through the 

eyes of state officials. We will see first-hand that they: • Care about the environments in which they live and work; 

• Have professional experience and local expertise; 

• Seek the right balance between environmental protection and economic opportunity; and •Take seriously their legal obligations under both state and federal law. 

It is important to understand the important role states play in protecting the environment. One thing wealready know is that Washington does not always know 

best. 

# # # 

OPENING STATEMENT OF HON. JOE BARTON, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS 

Mr. BARTON. Thank you, Chairman. 

And I first want to put to bed the rumor that I would not attend 

an early morning hearing on a getaway day. Staff seemed to think 

that I wouldn’t show up. I want the record to show the only two 

members here ahead of me were the subcommittee chairman and 

the ranking member. They were here when I arrived. So I can 

show up in the morning, although I will admit there have been 

times that I have not. 

I do appreciate this first hearing of this subcommittee being on 

this issue. I think we have a great panel of witnesses from around 

the country. When I was chairman of this committee back in 2005, 

we passed the Energy Policy Act, and in that, we revised the Safe 

Drinking Water Act to state as follows: Underground injection, to 

exclude the term underground injection, the underground injection 

of fluids or propping agents pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities. In 

other words, we said that the Federal Government could not regulate those. I think that is the best way to do it. 

In my home State of Texas, in my congressional district, there 

are over 16,000 producing wells that have been hydraulically fractured and horizontally drilled. In the largest county that I represent, Tarrant County, which is an urban-suburban county, the 

number of mineral property owners went from 500 in the mid 

1990s to today well over 100,000. This has been done without affecting the environment in any shape, form or fashion, other than 

the normal issues you have with noise and dust and trucks and 

8 

things like that when you drill or have any kind of a commercial 

activity. 

I think the ranking member’s statement from New York State is 

dead on in the sense that, comparing his State and my State, 

Texas has chosen to regulate hydraulic fracturing, but to allow it. 

His State so far has chosen not to. I don’t have a problem with 

that. I do predict over time, his home State of New York may decide, in fact, that it may be well to do it in certain shapes, forms 

or fashions. 

With that, I would like to yield to Dr. Gingrey for 2 minutes. 

[The prepared statement of Mr. Barton follows:] 

PREPARED STATEMENT OF HON. JOE BARTON

Thank you Chairman Shimkus for holding this hearing. My home state of Texas 

has been and is currently capable, active, and effective in protecting the environment and public health of Texans. I find it disingenuous for the Federal Government and in particular the Environmental Protection Agency (EPA) and the Department of Energy (DOE) to think that they are the only ones that can do this effectively. The same is true of the other states that sent governmental representatives 

here today to testify. 

The recognition that it is the states rather than the feds that can best regulate 

their domestic oil and gas productions, especially when it comes to emerging and 

innovative technologies, was spelled out in the Energy Policy Act of 2005, which 

passed through this Committee when I was Chairman. Back then, this Committee 

recognized the importance of hydraulic fracturing and expressly revised the Safe 

Drinking Water Act term ‘‘underground injection’’ to exclude ‘‘the underground injection of fluids or propping agents pursuant to hydraulic fracturing operations related 

to oil, gas, or geothermal production activities.’’ 

There is a company in my district and several other companies in Texas that are 

investing in researching reduced or waterless fracking technologies. This kind of innovation should be encouraged by local and federal agencies and these agencies 

should maintain oversight throughout the process so they understand the environmental and public health impacts instead of guessing at them. 

Mr. GINGREY. And I thank the gentleman for yielding. 

Mr. Chairman, I want to thank you for calling this hearing today 

on the role the States play in implementing our Federal environmental laws. 

I also would like to welcome our panel of witnesses that will provide the subcommittee with its collective wealth of knowledge on 

how they implement the various Federal laws, Federal and State 

laws. 

Today’s hearing is my first as vice chair of this subcommittee, 

and today’s hearing is a great example of the broad jurisdiction 

that we have. Mr. Chairman, I look forward to working with you 

and the other members of this subcommittee on both sides of the 

aisle, the ranking member Mr. Tonko, my good friend from New 

York, during this Congress to address the important environmental 

issues that will have a significant impact on the American people. 

We will examine spent nuclear fuel and its long-term storage with 

the hopes of finally turning the use of Yucca Mountain into a reality. 

During the 113th Congress, this subcommittee will also study 

the benefits of hydraulic fracturing in our domestic energy production. 

Mr. Chairman, I stand ready to work and I look forward to providing solutions for the policy areas under our jurisdiction on this 

subcommittee. 

9 

Today’s hearing provides a strong starting point for the subcommittee for the 113th Congress, and I believe that we will learn 

a great deal from our panel today that will help guide us throughout the next 2 years, and I yield back. 

Mr. SHIMKUS. The gentleman yields back his time. 

The chair now recognizes the ranking member of the full committee, Mr. Waxman, for 5 minutes. 

OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Mr. WAXMAN. Thank you, Mr. Chairman. 

I congratulate you on this hearing and taking over this chairmanship. 

And I want to recognize our ranking member on the subcommittee as well. We look forward to working on a bipartisan 

basis to get things done. 

This hearing is to examine the way Federal and State regulators 

work together to protect public health and the environment. Over 

the years, the Federal Environmental Protection Agency and the 

States have developed a proven model that has successfully reduced air pollution and ensured the public’s access to safe drinking 

water. 

Under this model, EPA sets minimum standards that States can 

exceed if they so choose. Implementation can be delegated to States 

on the showing that they have requirements in place that are at 

least as stringent as the Federal floor. Even then, EPA retains 

backstop enforcement authority to ensure that every citizen in the 

United States is receiving a minimum level of protection from environmental risks. EPA also plays an essential role in supporting 

State implementation through technical assistance, grants, and 

often loan funds as well. 

As we will hear from the panel, this model has worked. States 

have received delegation for over 96 percent of the environmental 

programs that can be delegated. This is an impressive track record, 

and even more so when you consider the fact that this approach 

has offered protection to American families from pollution that 

causes respiratory diseases, from contaminants in their drinking 

water, and from toxic environmental exposures that can cause cancers and other diseases. 

Despite these successes, there have been recent proposals to 

abandon the proven models and abdicate responsibilities to the 

States. One of the most immediate examples is the coal ash legislation from the last Congress. 

As we hear from State regulators about the good work they are 

doing, we should be mindful of the serious threat the sequester and 

the Republican budget pose to this proven model of environmental 

protection. Without Federal technical assistance and funding, 

States may be unable to maintain their delegated programs. If the 

programs are handed back to EPA, EPA may not have the resources to take on this added implementation. The transition between State and Federal programs may create costs for regulated 

entities and uncertainty for industry. And worst of all, bad actors 

10 

may see opportunities to shirk environmental regulations, because 

of the lack of enforcement resources. 

According to EPA, if sequestration goes into effect, there will be 

nearly 300 fewer cleanups under the leaking underground storage 

tank program. There could be a thousand fewer inspections to protect communities from toxic air pollution and other pollution that 

could can cause illness and death. And essential services to industry, like EPA’s certification of auto engines for emission standards, 

could be curtailed. 

Budget cuts that undermine implementation of our environmental statutes are penny wise and pound foolish. I hope my colleagues will listen closely to the testimony we hear today and bear 

it in mind as we consider sequestration, which is to take effect just 

a couple weeks from now, and EPA’s budget in the coming weeks. 

So I thank you for this hearing and look forward to the testimony. 

I would be happy to yield to any of my colleagues. 

Ms. Schakowsky, I yield to you the balance of my time. 

[The prepared statement of Mr. Waxman follows:] 

PREPARED STATEMENT OF HON. HENRY A. WAXMAN

I thank the Chairman for calling this hearing so that we can examine the way 

federal and state regulators work together to protect public health and the environment. Over the years, the federal Environmental Protection Agency (EPA) and the 

states have developed a proven model that has successfully reduced air pollution 

and ensured the public’s access to safe drinking water. 

Under this model, EPA sets minimum standard that states can exceed if they so 

choose. Implementation can be delegated to states on a showing that they have requirements in place that are at least as stringent as the federal floor. Even then, 

EPA retains backstop enforcement authority to ensure that every citizen in the 

United States is receiving a minimum level of protection from environmental risks. 

EPA also plays an essential role in supporting state implementation through technical assistance, grants, and often loan funds as well. 

As we will hear from the panel, this model has worked. States have received delegation for over 96% of the environmental programs that can be delegated. This is 

an impressive track record, and even more so when you consider the fact that this 

approach has offered protection to American families from pollution that causes respiratory diseases, from contaminants in their drinking water, and from toxic environmental exposures that can cause cancers and other diseases. 

Despite these successes, there have been recent proposals to abandon the proven 

models and abdicate responsibilities to the states. One of the most immediate examples is the coal ash legislation from last Congress. 

As we hear from state regulators about the good work they are doing, we should 

be mindful of the serious threat the sequester and the Republican budget pose to 

this proven model of environmental protection. Without federal technical assistance 

and funding, states may be unable to maintain their delegated programs. If the programs are handed back to EPA, EPA may not have the resources to take on this 

added implementation. The transition between state and federal programs may create costs for regulated entities and uncertainty for industry. And worst of all, bad 

actors may see opportunities to shirk environmental regulations, because of the lack 

of enforcement resources. 

According to EPA, if sequestration goes into effect, there will be nearly 300 fewer 

cleanups under the leaking underground storage tank program. There could be a 

1,000 fewer inspections to protect communities from toxic air pollution and other 

pollution that can cause illnesses and death. And essential services to industry like 

EPA’s certification of auto engines for emissions standards could be curtailed. 

Budget cuts that undermine implementation of our environmental statutes are 

penny wise and pound foolish. I hope my colleagues will listen closely to the testimony we hear today and bear it in mind as we consider sequestration and EPA’s 

budget in the coming weeks. 

11 

OPENING STATEMENT OF HON. JANICE D. SCHAKOWSKY, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS 

Ms. SCHAKOWSKY. I thank the gentleman for yielding, and I appreciate this hearing. 

An overarching theme of today’s hearing will be the role of States 

in monitoring and enforcing regulations over the process of hydraulic fracturing, I suspect. I am principally concerned about the environmental impacts of hydraulic fracturing. 

According to Cornell University president Robert Howarth, 3.6 to 

7.9 percent of the methane from shale gas production which, results from fracturing, escapes to the atmosphere in venting and 

leaks over the lifetime of a well, that was a quote. The study claims 

that this represents a 30 to 100 percent increase over conventional 

gas production. The impact of that methane pollution could be 

more impactful on greenhouse gas emissions than on the burning 

of oil. 

Concerns about the impact of hydraulic fracturing on water are 

well documented. Reports have been filed in more than 10 States 

about water contamination that occurred shortly after hydraulic 

fracturing commenced. 

I just want to point out that last month the EPA announced its 

third delay in its investigation into water contamination that the 

residents of Pavillion, Wyoming, believe is connected to hydraulic 

fracturing. We need to make sure that the EPA does follow up and 

examine the cause of contamination of drinking water. 

And I yield back. 

Thank you. 

[The prepared statement of Ms. Schakowsky follows:] 

PREPARED STATEMENT OF HON. JANICE D. SCHAKOWSKY

Thank you, Chairman Shimkus, for holding today’s hearing about the role of 

states in protecting our environment. This is an important topic, and I’m glad to 

start this congress on such a critical issue. 

An overarching theme of today’s hearing will be the role of the states in monitoring and enforcing regulations over the process of hydraulic fracturing. I am principally concerned about the environmental impacts of hydraulic fracturing. 

According to Cornell University Professor Robert Howarth, ‘‘3.6% to 7.9% of the 

methane from shale-gas production (resulting from hydraulic fracturing) escapes to 

the atmosphere in venting and leaks over the lifetime of a well.’’ The study claims 

that this represents a 30 100% increase over conventional gas production. The impact of that methane pollution could be more impactful on greenhouse gas emissions 

than the burning of oil. 

Concerns about the impact of hydraulic fracturing on water are well-documented. 

Reports have been filed in more than 10 states about water contamination that occurred shortly after hydraulic fracturing commenced. A well-funded EPA would enable faster investigation and action in the case of water contamination across the 

country. 

Last month, the EPA announced its 3rd delay in its investigation into water contamination that residents of Pavillion, Wyoming believe is connected to Hydraulic 

Fracturing. I sent a letter, along with 20 colleagues, to EPA Administrator Lisa 

Jackson voicing our concern about the delays—which have now stretched over a 

year—and reiterating the need to examine and rule on the cause of contamination 

of drinking water. 

Again, thank you for holding today’s important hearing. I look forward to the testimony of our witnesses. 

Mr. SHIMKUS. The gentlelady yields back her time. 

12 

Again, thank all members for their attendance. 

And now I would like to turn to our panel. Thank you for being 

patient. 

We are going to go left to right, and I am just—for the sake of 

time, I am just going to—I usually do a whole introduction, but I 

am just going to go straight. We are just going to run into this. 

So, first, let me welcome Mr. Harold Fitch, who is supervisor of 

the mineral wells and chief, Office of Oil, Gas, and Minerals for 

Michigan Department of Environmental Quality. 

Sir, your full statement is in the record, you have 5 minutes, and 

you are now recognized. 

STATEMENTS OF HAROLD R. FITCH, SUPERVISOR OF MINERAL WELLS, AND CHIEF, OFFICE OF OIL, GAS AND MINERALS, MICHIGAN DEPARTMENT OF ENVIRONMENTAL 

QUALITY; MATTHEW J. LEPORE, DIRECTOR, COLORADO OIL 

AND GAS CONSERVATION COMMISSION; SARAH PILLSBURY, 

ADMINISTRATOR, DRINKING WATER AND GROUNDWATER 

BUREAU, NEW HAMPSHIRE DEPARTMENT OF ENVIRONMENTAL SERVICES; JEFFERY STEERS, DIRECTOR, LAND 

PROTECTION AND REVITALIZATION DIVISION, VIRGINIA DEPARTMENT OF ENVIRONMENTAL QUALITY; TERESA MARKS, 

DIRECTOR, ARKANSAS DEPARTMENT OF ENVIRONMENTAL 

QUALITY; THE HONORABLE PRICEY HARRISON, NORTH 

CAROLINA HOUSE OF REPRESENTATIVES; AND THE HONORABLE MICHAEL A. SESMA, COUNCIL VICE PRESIDENT, CITY 

OF GAITHERSBURG, MARYLAND 

STATEMENT OF HAROLD R. FITCH 

Mr. FITCH. Thank you, Mr. Chairman and members of the subcommittee. 

I am Hal Fitch, as you heard. I am the State geologist of Michigan as well as the director of our Office of Oil, Gas, and Minerals. 

Our office is charged with regulating oil and gas and mining in 

Michigan. I am here today on behalf of the Interstate Oil and Gas 

Compact Commission. I am also a member of the board of directors 

of the Groundwater Protection Council, which you are going to hear 

from in just a minute. 

The IOGCC is an organization chartered by Congress that represents the Governors of 38 States. Its mission is to promote the 

conservation and efficient recovery of domestic oil and gas, while 

protecting health, safety, and the environment. Thank you for the 

opportunity to be here this morning. 

I want to talk briefly about the regulatory structure and processes in Michigan, recognizing that Michigan is typical of many of 

our sister States in many respects, and we are also unique; each 

State is unique. And I want to talk about IOGCC’s role in assisting 

the States in coordinating their efforts. The States have a long and 

successful history of regulating oil and gas operations. The States 

recognized the need, in fact, to protect the environment while at 

the same time fostering orderly development of oil and gas decades 

before the beginning of the modern environmental movement. 

Michigan’s regulatory structure is typical of our sister States. We 

oversee well drawing and production from cradle to grave, and we 

also cover injection wells that are associated with oil and gas operVerDate Nov 24 2008 14:14 May 21, 2013 Jkt 037690 PO 00000 Frm 00018 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 113\113-7 CHRIS
13 

ations. We have a staff of about 60 people, comprised of geologists, 

engineers, attorneys, enforcement specialists, and administrative 

support staff. Michigan has had over 60,000 oil and gas wells 

drilled starting back in the 1920s. We currently have about 19,000 

wells active. 

My agency’s oversight starts with issuance of permits and administration of our rules. They cover well drilling and construction to 

assure that oil and gas and by-products are contained within the 

well bore. If a well is productive, we regulate production rates, surface equipment, and environmental monitoring. Our staff conduct 

regular inspections over the life of a well, and we prescribe how a 

well has to be plugged and the site restored at the end of its productive life. Last year, we conducted over 17,000 field inspections. 

My agency enforces strict requirements for spill prevention, containment, cleanup and reporting. We monitor air and water emissions to assure compliance with State and Federal standards. Finally, we have dedicated funding to plug wells in the event that the 

operator isn’t solvent or enters into bankruptcy so that the State 

can take care of that well and plug it properly. 

State oil and gas statutes, regulations, and administrative procedures are tailored to the legal structure and doctrines, environmental conditions, geology, topography, climate, and community 

sensitivities that are specific to each State. In addition, our regulatory staff must have highly specialized backgrounds and expertise in well drilling, oil and gas production, law enforcement, and 

property rights as they apply in each specific State. A one-size-fitsall Federal approach would not be as effective or efficient in accommodating those unique issues. 

Hydraulic fracturing is an example of the adaptability of State 

regulations in addressing emerging technologies. Michigan has had 

over 12,000 wells hydraulically fractured, starting back in 1952. 

We have not had one incident of environmental contamination related to hydraulic fracturing. In talking to my counterparts in 

other States, they have the same conclusion. None of us have seen 

a direct impact or direct contamination of groundwater from hydraulic fracturing. There are some other issues associated with it 

that have to be managed properly. One of those is management of 

wastewater, the flow-back water that comes back out of the well. 

Another one is the increased water withdrawals that are necessary 

for large-scale fracturing which we are seeing in recent years. 

Michigan issued special requirements for evaluation of water 

withdrawals. We use a Web-based assessment tool, and we issued 

requirements for monitoring and reporting of hydraulic fracturing 

operations. We have also begun posting chemical additive reports 

on our Web site. Oil and gas agencies in other States have taken 

similar steps to address those same issues. 

While we are unique, we also—States also have elements in common with each other, and that is where the IOGCC and Groundwater Protection Council come in. They are very effective in helping us to coordinate our efforts and increase our effectiveness. The 

IOGCC provides a forum for States to share ideas, it has a training 

program, provides model statutes, coordination, and they have an 

inspector certification program. 

14 

Groundwater Protection Council developed FracFocus in cooperation with the IOGCC, the nationwide Web-based registry for reporting of chemicals used in hydraulic fracturing. It is used by 10 

States currently. We also, the IOGCC, supports underground injection peer-review program; the RBDMS, risk-based data management system, and we are evaluating the use of that RBDMS to 

help provide information to the Energy Information Administration. 

Mr. SHIMKUS. Mr. Fitch, if you can just sum up real quickly. We 

are going to have time for questions, so I think we will be able 

to—— 

Mr. FITCH. That is all I have to say. Thank you very much. 

[The prepared statement of Mr. Fitch follows:] 

15 


79850.001

TESTIMONY SUBMITIED TO THE SUBCOMMITTEE ON ENVIRONMENT AND THE 

ECONOMY OF THE HOUSE COMMITIEE ON ENERGY AND COMMERCE 

HEARING ON "THE ROLE OF THE STATES IN PROTECTING THE ENVIRONMENT 

UNDER CURRENT LAW" 

HAROLD R. FITCH, DIRECTOR, OFFICE OF OIL, GAS, AND MINERALS 

MICHIGAN DEPARTMENT OF ENVIRONMENTAL QUALITY 

FEBRUARY 15, 2013 

Good moming Mr. Chairman and members of the Subcommittee. My name is Hal Fitch. I am 

the Director of the Office of Oil, Gas, and Minerals (OOGM) of the Michigan Department of 

Environmental Quality and have served in that capacity for the past 16 years. The OOGM is 

charged with regulating oil, gas, and mineral exploration and production operations in Michigan. 

I am here today on behalf of the Interstate Oil and Gas Compact Commission (lOGCC) to 

describe the states' role in protecting the environment through regulation of oil and gas drilling 

and production. The IOGCC is an organization chartered by Congress that represents the 

govemors of 38 states. Its mission is to promote the conservation and efficient recovery of 

domestic oil and natural gas resources while protecting health, safety, and the environment. 

am Michigan's Official Representative to the IOGCC. I am also a member of the Board of 

Directors of the Ground Water Protection Council, which is also represented here today. 

I appreciate this opportunity to address you on this important issue. I want to talk briefly about 

the regulatory structure and processes in Michigan as well as other states, and the role of the 

IOGCC in assisting the states in those efforts and in coordinating state actions. 

The states have a long and successful history of regulating oil and gas operations. In fact, the 

states' recognition of the need to protect the environment while supporting the efficient 

production of oil and gas dates back many decades before the modern environmental 

movement. 

Michigan is typical of other oil- and gas-producing states in the scope and depth of our oil and 

gas regulations. We oversee well drilling and production from cradle to grave. I have a staff of 

about 60 people, comprised of geologists, engineers, attorneys, enforcement specialists, and 

administrative support personnel. Our oversight starts with siting of each well to assure 

protection of ground water, surface water, wetlands, aquatic habitat, cultural features, property, 

and other features. We also regulate the location and spacing of wells so that the oil and gas 

resources can be efficiently extracted with the minimum number of wells and least amount of 

surface disturbance. In addition to oil and gas extraction wells, we regulate wells for injection of 

brine, gas, and other fluids for disposal, enhanced oil recovery, or underground gas storage. 

Oil and gas operators must obtain a permit from the state for each well before beginning to drill. 

Permits incorporate specific drilling and well construction criteria to assure that oil, gas, and 

byproducts are contained within the wellbore and do not escape to the environment. If a well is 

productive, we enforce regulations on production rates, surface equipment, and environmental 

monitoring. At the end of a well's productive life, or if the well is initially non-productive (i.e., a 

"dry hole"), we prescribe how it must be plugged and how the site must be restored. Our staff 

inspect well operations to assure adherence to requirements for protection of the environment 

and public health. We have a total of 15,000 oil and gas wells and 4200 injection wells in 

Michigan. Our staff conducted over 17,500 field inspections in 2012. 
16 


79850.002

Testimony of Harold R Fitch 

Page 2 

Throughout the life of a well, we enforce requirements for spill prevention, containment, and 

cleanup. We require secondary containment, such as synthetic liners, under areas prone to 

accidental spills. If spills occur, they must be promptly reported, monitored, and cleaned up. 

We monitor for emissions to the air and water to minimize potential impacts and assure 

adherence to federal and state laws. We have a dedicated fund, provided from taxes paid by 

the oil and gas industry, to plug wells and restore sites if an owner is in bankruptcy or ceases to 

exist. 

Michigan's oil and gas statutes, regulations, and administrative procedures are tailored to the 

legal structure and doctrines, environmental conditions, geology, topography, climate, and 

community sensitivities specific to our state. A one-size-fits-all federal approach would not be 

as effective or efficient in accommodating these unique issues. In addition, our staff must have 

highly specialized background and expertise in well drilling, oil and gas production, law 

enforcement, and property rights that are distinctive to Michigan in many respects. 

Our regulatory oversight has to be flexible and adaptable. A good example is our response to 

the issue of hydraulic fracturing. Hydraulic fracturing was first used in Michigan in 1952. Since 

then, we have had over 12,000 wells hydraulically fractured and there have been no instances 

of environmental contamination related to the practice. Recent increased use of the technology, 

particularly in conjunction with horizontal drilling, has dramatically increased U.S. oil and gas 

production; however, it has also caused concern among the public and environmental advocacy 

groups over potential environmental impacts. 

Our agency has responded to this concern in several ways. We issued a special permitting 

instruction that requires evaluation of potential impacts of water withdrawals using a web-based 

assessment tool; reporting of chemical additives used in hydraulic fracturing and posting of the 

information on our website; and monitoring and reporting of pressures and fluid volumes during 

hydraulic fracturing operations. Over the past year my staff and I have given over 100 

presentations to the public and special interest groups to provide the facts about hydraulic 

fracturing and explain our regulatory response to the concerns. 

While each state is unique, the states also have many things in common. This is where multistate organizations play an important role. The IOGCC and GWPC are the two main 

organizations that have assisted and supported the states in implementing our responsibilities. 

The IOGCC provides a forum for states to share ideas, compare similarities and differences, 

and formulate regulatory solutions. The organization provides training, model statutes, and 

coordination among its member states. The IOGCC developed an Inspector Certification 

program used by several states to help ensure that on-the-ground inspectors have the 

necessary qualifications and background. 

A good example of interstate cooperation around a common issue is the development of 

FracFocus-a nationwide web-based registry for reporting chemicals used in hydraulic 

fracturing operations. The registry was established in 2011 by the GWPC in cooperation with 

the IOGCC. Three hundred seventy-five companies now report their fracturing operations on 

FracFocus, and the database has more than 37,000 records of individual fracturing operations. 

Currently, ten states require disclosure to FracFocus by rule, and additional states may adopt 

this approach. FracFocus was recently upgraded to version 2.0, which provides improved 

searchability. 
17 


79850.003

Testimony of Harold R. Fitch 

Page 3 

The IOGCC also supports the Underground Injection Control Peer Review program 

implemented by the GWPC. This program provides review and advice to help states evaluate 

the effectiveness of their injection well programs in protecting the environment and public 

health. 

Another example of states working together is the Risk-Based Data Management System 

(RBDMS) developed by the GWPC. Michigan and many of our sister states also have adopted 

RBDMS to manage our oil and gas drilling and production data. RBDMS provides a common 

platform that can be tailored to meet the specific needs of each individual state. RBDMS is a 

mission critical tool for regulatory program management and environmental resource protection. 

Most recently, states through the GWPC are exploring ways that RBDMS can assist the Energy 

Information Administration to increase the public availability of timely, accurate, and 

comprehensive U.S. oil and gas production data. 

In conclusion, we are confident in the ability of the laws, rules, regulatory procedures, and 

professional staff in Michigan and our sister states to protect the environment and public health 

in an efficient and effective manner. Our regulatory structures are adaptable in addressing new 

technologies and new concerns, and they yield consistent results tailored to our specific needs 

and priorities. 

Thank you again for the opportunity to appear here today. I would be glad to entertain any 

questions the Subcommittee may have. 
18 

Mr. SHIMKUS. Thank you. 

I would now like to turn to my colleague and friend Diana 

DeGette from Colorado to introduce our next member of the panel. 

Ms. DEGETTE. Mr. Chairman, I am really happy to welcome Matthew Lepore from Colorado. He is the director of the Colorado Oil 

and Gas Conservation Commission, relatively new to that post, and 

he has been very busy since he got there. We have had two rule 

changes, and he is working hard to implement all of the rules. 

Colorado has a really innovative way that we are trying to grapple with this new oil and gas development, particularly hydraulic 

fracturing. The Oil and Gas Commission has been working with a 

coalition that includes environmentalists as well as the industry. 

While I don’t always agree 100 percent with all the rules they are 

promulgating, I think they are working hard, and I think he is a 

great witness to the high standard that some States like Colorado, 

of course, has always had. 

So thank you for coming, Mr. Lepore. We are looking forward to 

hearing your testimony. 

STATEMENT OF MATTHEW J. LEPORE 

Mr. LEPORE. Thank you very much, Mr. Chairman. 

Thank you very much, Ms. DeGette, I appreciate that a great 

deal. 

I am pleased to be here to provide our perspective on how the 

State of Colorado regulates oil and gas exploration and production 

to develop our important indigenous resources responsibly and in 

a manner that protects our environmental resources. 

I am here today on behalf of both the State of Colorado and the 

Groundwater Protection Council. The Groundwater Protection 

Council was formed in 1983. It has 43 member States, and its purpose is to—its members include organizations of environmental underground injection control, source water, groundwater, and oil and 

gas regulatory agencies. GWPC promotes the use of best practices 

and fair but effective laws regarding comprehensive groundwater 

protection. Among many other projects intended to protect groundwater, GWPC, in conjunction with the Interstate Oil and Gas Compact Commission, manages FracFocus, the national hydraulic fracturing chemical registry, which I will discuss in greater detail 

below. 

Colorado has a very long history of oil and gas production. Our 

first well was drilled in 1862. It was one of the first wells in the 

country. Today we have 50,265 active oil and gas wells. We add 

about 2,000 a year and will continue to do so for the foreseeable 

future. In 2012, we produced a record-breaking, for Colorado, 47 

million barrels of oil. At the same time, we have a thriving resort 

and tourist economy. Our rugged mountains, clear streams, and 

abundant wildlife are an essential part of our heritage. 

I would like to focus for just a minute or two on some of the rules 

that Colorado has adopted, specifically in the last 15 months. Starting in December 2011, Colorado adopted the most progressive frack 

fluid chemical disclosure rule in the country up to that time. It requires operators to disclose all of the chemicals used in their frack 

fluid. All those chemicals are posted on FracFocus and are available for public review. Colorado’s rule has been imitated by several 

19 

States, including Pennsylvania, Ohio, and Tennessee, and much of 

BLM’s proposed regulation looks to Colorado for a model. 

In January of this year, last month, we adopted a groundwater 

monitoring requirement. Beginning on May 1st all new wells 

drilled in Colorado will be required, the operator will be required 

to take a pre-drilling groundwater sample and two post-drilling 

groundwater samples so that we can understand what baseline 

conditions are and have an opportunity to see if any drilling has 

impacted any of those groundwater resources. 

And, finally, Monday of this week, although it seems much 

longer ago, we adopted a rule setting new setback distances, the 

distance between occupied buildings and wells, after about a yearlong stakeholder process. 

My agency has 76 full-time employees dedicated to protecting the 

environment and seeing that our resources are responsibly developed. Many of those have advanced degrees, including Ph.D.s, master’s degrees, we have geochemists, we have hydrologists, we have 

environmental specialists. There is no one on my staff who is interested in seeing oil and gas development adversely impact our environment. 

In the limited time I have left, I would like to show you a couple 

of pictures and talk about some of the tools that we use to regulate 

efficiently, effectively, and transparently. 

If you can go to the next slide for me, please. We have—these 

are hard to see. This is an interactive map that is available on our 

Web site, that is publicly accessible. This map has 125 layers of information. What you are looking at there is a picture of Weld 

County, Colorado, and all of the wells in that particular section. 

You click on any one of those links, you will find out everything 

you want to know about that well, when it was drilled, how deep 

it is drilled, how it was completed, how much production there has 

been, whether there has been an inspection, a violation, an enforcement action. 

If I could have the next slide please. 

I am going to keep going, skip a couple, please. One more. That 

is a production report. This is a FracFocus link. You can get there 

directly from our Web site. Again, for any well in the State, you 

can pull this up. If it was stimulated since the rules became effective, you can find out what was used in the frack stimulation fluid. 

Next slide please. I want to go one more. Thank you. 

This is what we call an e-form through GWPC. GWPC developed 

for us an electronic form submittal and management system so 

that an operator’s permit to drill is submitted electronically, and 

this is an inspection report. So we generate electronic inspections, 

we send these to the operators directly. Tremendously efficient and 

effective regulatory system developed by GWPC for us. 

My time is up. Thank you very much. 

[The prepared statement of Mr. Lepore follows:] 

20 


79850.004

THE HOUSE COMMITTEE ON ENERGY AND COMMERCE 

SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY 

"THE ROLE OF THE STATES IN PROTECTING THE ENVIRONMENT UNDER 

CURRENT LAW" 

Matthew J. Lepore 

Director, Colorado Oil and Gas Conservation Commission 

Colorado Department of Natnral Resources 

Friday, February 15,2013 

Mr. Chair, thank you for this opportunity to provide our perspective on how the state of Colorado 

regulates oil and gas exploration and production to develop our important, indigenous resources 

responsibly and in a manner that protects our environmental resources. My name is Matthew 

Lepore, and I am the Director of the Colorado Oil and Gas Conservation Commission, the state 

agency responsible for regulating oil and gas development. 

I am here today on behalf of Colorado and the Groundwater Protection Council (GWPC) to 

describe the states' role in protecting the environment through progressive, balanced regulation 

of oil and gas exploration and production. GWPC is a nonprofit (50 I (c)( 6)) organization whose 

members include state environmental, Ule. source water, ground water. and oil and gas 

regulatory agencies. GWPC promotes the use of best practices and fair but effective laws 

regarding comprehensive ground water protection. Among many other projects intended to 

protect groundwater. GWPC. in conjunction with the Interstate Oil and Gas Compact 

Commission. manages FracFocus. the national hydraulic fracturing chemical registry, which is 

discussed in greater detail below. 

I would like to speak briefly about Colorado's regulatory regime, and the important ways GWPC 

enhances the Colorado Oil and Gas Commission's efficiency, effectiveness, and regulatory 

transparency. 

Colorado has a long and proud history of oil and gas development, with our first oil well dating 

back to 1862. Today, we have 50,265 active wells, having passed the 50,000 mark just this past 

December. We have been adding at least 2,000 new wells per year for the past nine years, and 

expect 2013 to be similar. 2012 was a record-breaking year for oil production in Colorado; we 

expect production to top 47 million barrels when the final numbers are tallied. We rank fifth in 

the nation in natural gas production and tenth in oil production. Our diverse hydrocarbon 

resources encompass a variety of shale, tight sand, coal bed methane, and other formations that 

span the state. At the same time, we have a thriving resort and tourist economy, and our rugged 

mountains. clear streams, and abundant wildlife are an essential part of our heritage. 

With respect to modem technologies that are very much in today's headlines, nearly one-third of 

all wells drilled in Colorado last year were horizontal wells, and we expect that percentage to 

grow steadily, as it has in each of the past four years. We have more than twenty years of 

experience with hydraulic fracturing, a technology that is absolutely vital to unlocking 

Colorado's rich natural gas and oil reserves. These reserves are a critical source of domestic 
21 


79850.005

energy for our state and nation, and their exploration, development, and production provides 

good-paying jobs for our residents and needed tax revenues for our communities. 

But it is also essential that this development occurs in an environmentally responsible manner 

that protects our water resources generally and our drinking water specifically. This is a 

fundamental part of our regulatory mission, and something that everyone at our agency takes 

very seriously. To that end, our Rules continue to evolve to keep pace with technological 

changes in the industry. 

During 2007 and 2008, our agency devoted substantial time and effort to updating our 

regulations to address a broad range of environmental issues associated with oil and gas 

development. The final rules strike a responsible balance between energy development and 

environmental protection, and they reflect input from dozens oflocal governments, oil and gas 

companies, and environmental groups, as well as thousands of our residents. These rules have 

become the basis for regulatory initiatives in other states, and even other countries, most recently 

the Ukraine. 

In December 2011, the COGCC worked with such diverse partners as the Environmental 

Defense Fund and Halliburton, to craft a hydraulic fracturing fluid chemical disclosure rule that 

has been hailed as a model and widely imitated by other states, including Ohio, Pennsylvania, 

and Tennessee. 

In January of this year, Colorado adopted rules requiring mandatory testing of groundwater near 

new wells, both before and after drilling and completion operations. We are one of just three 

states in the country to require groundwater sampling, and the only state that requires postdrilling sampling. 

Finally, just this week, on February 11, the COGCC adopted new rules that increase the 

minimum distance, or "setback," between oil and gas facilities and occupied buildings, and 

require the most stringent set of mitigation measures in the country to ensure work occurs with 

the least disturbance to nearby residents. Among other measures, closed-loop or "pitless" 

drilling systems and "green completions" are required at all locations within 1 ,000 feet of 

occupied buildings. Increased notice to, and communication with, nearby residents is also a 

central tenet ofthese new rules. Operators are required to notifY local governments and citizens 

well in advance of commencing operations, and to meet with interested or concerned citizens if 

requested to do so. We believe improving communications among these stakeholder groups at 

the front end will alleviate many questions, concerns, and potential conflicts as operations 

progress. 

In partnership with our universities, we are launching a comprehensive study of the impacts of 

natural gas drilling on air quality and public health. This comes after several steps in recent 

years to reduce pollutants that originate at oil and gas facilities, including requiring emissioncontrol devices to capture emissions that might otherwise escape. 

These recent state rulemakings exemplify the benefits associated with state oversight and sitespecific regulation. Colorado's amended rules contain various provisions to ensure that oil and 

gas operations do not harm our drinking water or unreasonably interfere with other land use 

2 
22 


79850.006

activities, while recognizing the distinctions between, and idiosyncrasies of, different producing 

basins in different regions of our state. For example, 

• Rule 205A requires operators to disclose the chemicals used to hydraulically fracture 

a well. Under this Rule, effective April 1,2012, operators are required to disclose all 

known chemicals in hydraulic fracturing fluids to the public via the website 

www.FracFocus.org or, with respect to an operator's trade secrets, directly to the 

Commission or health professionals upon request. FracFocus.org is a national hydraulic 

fracturing chemical registry website created by the GWPC and the Interstate Oil and Gas 

Compact Commission. Public access to this information provides greater transparency to 

help build public trust and provide the tools to those who want to ensure their water 

supplies are protected. 

• Rule 317 requires wells to be cased with steel pipe and the casing to be surrounded 

by cement to create a hydraulic seal and ensure that gas and fluids do not leak into 

shallower aquifers. Further, operators are required to run cement bond logs on all 

production casing to confirm that the cement has properly isolated the hydrocarbon 

bearing zones. Rule 341 requires operators to monitor well pressures during hydraulic 

fracturing and promptly report significant increases. Together, these requirements help to 

ensure that ground water is protected and that prompt action is taken if conditions arise 

that could lead to the subsurface release of hydraulic fracturing fluids. 

• Rule 317B imposes mandatory setbacks and enhanced environmental protections on 

oil and gas development occurring near sources of public drinking water. These 

requirements provide an extra layer of protection for our public water supplies and help 

ensure that these critical resources are not inadvertently contaminated by energy 

development. 

• Rules 608, 609, and 318A require operators to sample nearby water wells before, 

during, and after operations to ensure that they are not contaminated by gas or other 

pollutants. Rule 608 applies to coalbed methane basins in the state, Rule 381A applies in 

the DJ Basin in northeastern Colorado, and Rule 609 applies to all other areas of the state. 

The COGCC recognizes that each ofthese areas has unique characteristics, making a 

one-size-fits-all solution impractical; however, groundwater must be protected on a 

statewide basis. These rules provide an extra layer of protection, above and beyond our 

casing and cementing requirements. 

New Rule 604 establishes a 500 foot setback from occupied buildings, and a 1,000 

foot setback from "high occupancy buildings" such as schools, hospitals, and day care 

centers. This Rule also mandates specific mitigation measures to alleviate potential 

noise, odor, light and dust issues associated with drilling and completion activities for 

wells located near occupied buildings. 

• Amendments to Rules 305 and 306 require early and more detailed notification to 

residents living within 1,000 feet of new oil and gas operations, including an opportunity 

to meet with the operator regarding the planned operations and proposed mitigation 

measures. 

The oil and gas industry is a dynamic one, and its methods and technologies are continually 

evolving. The industry's continued success depends upon its ability to develop new resources 

using innovative techniques, and the ability of state regulations and regulators to stay apace of 

these developments and apply appropriate, fast-adapting oversight. For many years now, the 

3 
23 


79850.007

GWPC has been an important partner in COGCC's efforts to regulate efficiently, effectively, and 

transparently. GWPCs Risk Based Data Management System (RBDMS) is an important tool 

eOGCC and other state oil and gas regulatory agencies use to manage and analyze oil and gas 

program data and water resources management information. RBDMS can provide data about oil 

and gas well locations. permitting. and production to regulators. the public. and industry through 

its Web interfaces. eOGCC is working with the GWpe and the Energy Information 

Administration on an effort to us an RBDMS interface to update the U.S. oil and gas production 

database in an automated fashion to provide timely and accurate information from its states 

online data. 

Three specific RBDMS tools developed by or in collaboration with GWPC are critical 

components ofCOGCCs regulatory arsenal: our E-Forms application. which allows many of 

our regulatory forms. including drilling permits. to be filed electronically; FracFocus; and our 

interactive Environmental Database. 

E-Forms is a software application that allows the agency to manage regulatory forms. including 

drilling permits. completion reports. and oil and gas location assessments. electronically. Users 

of these forms - primarily operators are able to submit them electronically. Additionally. the 

agency can transmit electronic copies of these forms to parties, such as the surface owner or local 

governments. that are entitled to notification under our Rules. Furthermore. interested parties 

can access and provide comments on drilling permits and location assessment forn1s on-line. 

The automated functionality of e-forms has greatly reduced staff time spent entering data from 

paper fonns. allowing them to spend more time on primary duties. Processing time for drilling 

applications has also been reduced. We continue to work with GWpe as we transition additional 

forms from paper to electronic format as quickly as we can. 

FracFocus. the national hydraulic fracturing chemical registry, developed and managed by 

GWPC and 10GCC, also provides important benefits to the COGCC, industry, and the public. 

GWPC worked with US to develop a direct link between our COGIS interactive map and the 

FracFoeus database, so that a user viewing a well on our map ean go directly to FracFocus and 

read the hydraulic frac' fluid disclosure report for that well. The ability to use FracFocus as the 

repository for disclosure reports, rather than developing one from seratch, saved the COGCC 

both time and money. Industry has benefitted by having a single repository, with one set of 

submission requirements, rather than dealing with different requirements across the country. 

Finally, FracFocus lends invaluable transparency to, and increases confidence in, the regulatory 

process by enabling the public to see what chemicals are being used to frac' wells. 

Our Environmental Database is a publicly-accessible database of environmental sampling data 

associated with specific wells or locations. The database is linked to our GIS Map. so a user can 

instantly call up. view, and download water. soil. or air sampling data associated with. for 

example. a well located near their home. The Environmental Database went '"live" in September 

2012. and will continue to grow as operators submit groundwater sampling data required under 

our new Rules. The Environmental Database also houses sampling results related to remedial 

investigations and environmental clean-up projects undertaken or directed by eOGec staff. 

GWPC originally developed an environmental database application for use by Ohio. and was 

4 
24 


79850.008

able to modify the application to work with Colorado's existing GIS map and related 

applications. 

The COGCC was established by the Colorado General Assembly in 1951. The COGCC has a 

full time staff of76; that includes PhDs. Professional Engineers. Groundwater lIydrologists. 

Geochemists. and other environmental specialists. all dedicated to ensuring compliance with our 

rules. We have learned much through experience. and our rules have evolved to keep pace with 

changing technologies. Today. advances in horizontal drilling. hydraulic fracturing. and threedimensional seismic imaging have combined to open a new frontier in exploration and 

development in Colorado and across the country - shale oil and shale gas. The economic and 

energy-security benefits of developing these resources is potentially transfonnative. Yet. we 

must ensure that our respective regulatory regimes set the highest standards of conduct for 

industry and protect our air. water. and wildlife as these technologies are deployed. The recent 

changes to COGCCs Rules demonstrates Colorado's firm commitment to this course of action. 

Our experience, and that of other states, demonstrates exploration and production activities are 

most effectively regulated at the state level, where highly diverse regional and local conditions 

are more fully understood and where rules can be tailored to fit the needs oflocal basins. 

environments and communities. We believe in Colorado that we can best ensure that our 

precious natural resources and environment are protected while allowing for the innovation and 

experimentation that are the hallmarks of our nation. 

5 
25 


79850.009
26 


79850.010
27 


79850.011
28 


79850.012
29 


79850.013
30 


79850.014

79850.015
32 


79850.016
33 


79850.017
34 


79850.018

79850.019
36 


79850.020
37 


79850.021
38 

Mr. SHIMKUS. And I thank you. One of the things we did do in 

the last Congress, do an e-manifest issue which I think was a bipartisan bill that actually passed Congress, signed into law, so we 

appreciate that. 

Now representing the Association of State Drinking Water Administrators, Sarah Pillsbury, who is the administrator, Drinking 

Water and Groundwater Bureau of New Hampshire’s Department 

of Environmental Sciences. 

Ma’am, welcome, you are recognized for 5 minutes. 

STATEMENT OF SARAH PILLSBURY 

Ms. PILLSBURY. Great, thank you. And I don’t have any pictures, 

but every once in a while I will hold this up, just to remind everybody how important public drinking water is. 

I thank you very much for this opportunity to testify. I represent 

the Association of State Drinking Water Administrators, I am the 

current president, and our members include the 50 States, the District of Columbia, five territories, and the Navajo Nation. 

State drinking water programs are fully committed to their public health mission. States recognize that the health and well-being 

of their citizens and communities are dependent on receiving safe 

and reliable drinking water. It is important to remember that the 

State drinking water program personnel live and work in the communities served by the programs they administer. It is personal to 

us. 

State personnel are highly qualified to implement the public 

drinking water programs. They fully understand the multifaceted 

nature of the challenges they face and what is needed to protect 

the sources of drinking water, adequately treat those sources, and 

get good water to the tap. Our work is especially challenging in 

light of extremely constrained resources for the State drinking 

water programs. 

State personnel also have the on-the-ground knowledge about 

how to best tailor Federal programs to States’ needs and conditions. In brief, the key role of the State drinking water programs 

are to inform water systems of what the requirements are, make 

sure they have the capabilities to implement those requirements 

and comply, and then giving ongoing oversight to ensure that that 

compliance continues over time. 

Turning to the EPA–State partnership, we believe it should be 

and currently is one of mutual respect that allows each partner to 

do what they do best. For EPA, this involves establishing overarching national requirements along with needed tools and information. States believe that the Federal requirements need to be 

based upon State input so that implementation is both possible and 

practical. For States, this partnership entails implementing Federal requirements in a manner consistent with local conditions and 

realities. 

Two recent examples of where this partnering has really led to 

great results, the first is the total coliform rule, the revised total 

coliform rule, and the second is the agency’s decision to allow electronic distribution of our consumer confidence report. 

To appreciate the challenge of ensuring compliance with the Safe 

Drinking Water Act, it is important to understand the universe of 

39 

water systems that the act covers, from restaurants to manufactured housing parks to America’s largest cities. 

While most Americans receive their water from large community 

water systems, most of the 53,000 community water systems serve 

less than 3,300 people. In my State of New Hampshire, of the 700 

community water systems, 82 percent of those serve less than 500 

people. And those systems have to meet basically the same requirement as my largest city. So States must employ strategies for addressing systems of all sizes and capabilities. 

In addition, States are challenged by complex regulations, many 

of which are risk-based and system-specific. That is really a good 

thing in terms of the water that gets delivered, but it can be challenging to implement. 

Finally, we are challenged by an ever-increasing number of 

emerging contaminants and the need to work with our partners on 

protecting the sources of drinking water. 

Certainly, one of the most multifaceted source-protection challenges currently is the rapid expansion of hydrofracturing to extract oil and gas. We understand that State oil and gas programs 

have been working diligently to provide needed oversight of these 

activities. We await the results of EPA’s studies to help shed light 

on the relationship between hydraulic fracturing and the sources of 

our drinking water and whether additional support of the States is 

necessary. 

One last programmatic responsibility worthy of mention is the 

need for States to continue their work on emergency preparedness 

and response, whether the emergency is rooted in terrorism, vandalism, natural disasters, or cyber intrusions is the latest. 

As I mentioned earlier, State drinking water programs are constrained by lack of resources. State budgets are under extreme 

pressure and are unable, often, to bridge the gap between the currently inadequate Federal funding and the amount of funds that is 

actually necessary to implement the Federal requirements. 

The Public Water Supply Supervision grant is the primary, and 

in some cases the only, Federal funding source for the State. It has 

been flatlined at roughly $100 million for several years, whereas 

about twice that is needed. And we understand that this subcommittee has no jurisdiction over appropriations, but we believe 

that you are key and that your support is key to get that funding 

increased to where it needs to be to be adequate. 

So, in summary, States are doing a remarkable job, all things 

considered, and are carefully setting priorities to help ensure that 

public health protection remains preeminent. A strong drinking 

water program supported by the Federal-State partnership and 

adequately funded by Congress will ensure that the quality of 

drinking water in this country remains safe, no matter where we 

live or work or play. 

Thank you. 

Mr. SHIMKUS. Thank you. 

[The prepared statement of Ms. Pillsbury follows:] 

40 


79850.022

ONE PAGE SUMMARY OF TESTIMONY 

Hearing on "The Role of the States in Protecting 

the Environment Under Current Law" 

Subcommittee on Environment and the Economy 

Friday, February 15, 2013 

Sarah Pillsbury, President; Association of State Drinking Water Administrators 

Who Are We? The Association of State Drinking Water Administrators (ASDWA) 

represents the collective interests of the 50 state drinking water programs, the District of 

Columbia, the five territories, and the Navajo Nation. 

State Commitment to the Mission: State drinking water program personnel are fully 

committed to their public health protection mission. 

State Personnel are Trained for the Job, Have Knowledge of Local Conditions, and 

Provide Needed Assistance: State personnel also have the necessary background and 

expertise to administer these programs. State personnel also have the on-the-ground 

knowledge about how to best tailor Federal programs to state needs and conditions. 

How do States Administer Their Programs and Ensure Compliance with Drinking Water 

Regulations? In brief, this responsibility involves informing water systems of requirements; 

ensuring that water systems have the capability to implement and comply with those 

requirements; and providing oversight to ensure that they continue to comply. 

• What is EPA's Role and How is the State-EPA Partnership Working? States view this 

partnership as essential to achieving our collective goals. We believe the partnership should 

be (and currently is) one of mutual respect that allows each partner to do what they do best. 

• Technical Challenges in Implementing State Drinking Water Programs: Effective public 

health protection must involve strategies for both large and small public water systems. 

States are also challenged by implementing complex regulations. 

What are ASDWA's Views of Hydrofracturing? We await the results of EPA's 

CongreSSionally mandated four year study to help shed light on the relationship between 

hydraulic fracturing and drinking water resources and whether additional support of states' 

efforts is needed. 

• Programmatic Challenges in Implementing State Drinking Water Programs - What Can 

Congress Do? States urgently need more resources for administering their programs. 

• What is the Role of State Drinking Water Programs in Ensuring the Security of Drinking 

Water? State drinking water programs are critical partners in emergency planning, response, 

and resiliency at all levels of government. 
41 


79850.023

TESTIMONY 

Hearing on liThe Role of the States in Protecting 

the Environment Under Current Law" 

Subcommittee on Environment and the Economy 

Committee on Energy and Commerce 

Friday, February 15, 2013 

Sarah Pillsbury, Drinking Water Administrator 

New Hampshire Department of Environmental Services 

and 

President, Association of State Drinking Water Administrators 

Who Are We? 

The Association of State Drinking Water Administrators (ASDWA) represents the collective 

interests of the 50 state drinking water programs, the District of Columbia, the five territories, 

and the Navajo Nation in their efforts to provide safe drinking water to their citizens. State 

drinking water programs operate "source to tap" programs - implementing all aspects of the 

Safe Drinking Water Act (SDWA) within their jurisdictions. 

State Commitment to the Mission: 

State drinking water program personnel are fully committed to their public health protection 

mission. States recognize that the health and well being of their citizens and communities are 

dependent on receiving safe and reliable drinking water. It's important to remember that state 

drinking water program personnel live and work in the communities served by the programs 

they administer -- it's personal for them. They often know, first hand, about the negative 

consequences of lack of vigilance in ensuring that these protections are in place (e.g., 

waterborne disease outbreaks, cancer clusters, etc.) 
42 


79850.024

2 

State Personnel are Trained for the Job, Have Knowledge of Local Conditions, and Provide 

Needed Assistance: 

State personnel also have the necessary background and expertise to administer these 

programs. They're highly qualified professionals who fully understand the multi-faceted 

nature of the challenges they face and what's needed to protect sources of drinking water, 

adequately treat those sources, and deliver safe water to the tap. That task is particularly 

challenging in light of extremely constrained resources for state drinking water programs, as 

discussed later in this testimony. 

State personnel also have the on-the-ground knowledge about how to best tailor Federal 

programs to state needs and conditions. States have developed a detailed understanding of the 

conditions in their states and how Federal requirements should be adapted to local conditions 

to achieve Safe Drinking Water Act goals. States essentially "translate" the Federal requirement 

to local situations. They provide the needed training and technical assistance to public water 

systems who are on the front lines of delivering safe tap water. 

How do States Administer Their Programs and Ensure Compliance with Drinking Water 

Regulations? 

In brief, this responsibility involves informing water systems of requirements; ensuring that 

water systems have the capability to implement and comply with those requirements; and 

providing oversight to ensure that they continue to comply. The overarching objective of states, 

in all of these efforts, is to get and keep public water systems in compliance whether a 

restaurant or large city water utility -- thereby protecting public health. Ideally, this process 

occurs proactively on the part of water systems; however, if not, states undertake an escalating 

series of compliance and enforcement actions to return a facility to compliance. 

• Informing: Most water systems do not read the Federal Register on a routine basis and 

many do not have full time staffs. Thus, states reach out to water systems to inform 

them of all applicable requirements. Many states also adapt the Federal regulations into 
43 


79850.025

3 

more user-friendly state-specific regulations and guidance documents. States may also 

include additional state requirements, beyond the Federal minimums. 

TraininglTechnical Assistance: States (along with technical assistance providers, 

industry organizations, and EPA) spend considerable time training water facilities to 

enhance their overall technical, managerial, and financial capacities to comply with all 

rules as well as providing rule-specific training, where appropriate. Proactive 

approaches to building water system capacity is by far the best and most effective 

approach to public health protection. Reactive approaches (after problems occur) tend 

to be expensive, time-consuming, and less protective of public health. 

> Underscoring the Importance of the Drinking Water Industry/Promoting Succession 

Planning: States recognize that the day to day efforts of providing safe drinking water to 

customers at their taps is undertaken by dedicated men and women at the local water utility 

level who share the same overarching public health protection goals as state drinking 

programs. States employ a variety of strategies to partner with the drinking water industry 

to provide the support necessary for these "unsung heroes", including exploring approaches 

to recruitment and retention of water system operators at a time when a cadre of experienced 

personnel is retiring. 

• CompliancelEnforcement Actions: States routinely conduct on-site inspections and 

review various water quality reports to ensure public water systems are complying with 

all drinking water requirements. When a system is not in compliance, a state will 

employ an escalating series of responses appropriate to the severity of the violation. For 

instance, minor infrequent violations can often be addressed by a phone call or Jetter. 

Ongoing, more serious violations warrant more serious responses - up to and including 

fines and penal ties levied through Administrative Orders or Consent Decrees. 
44 


79850.026

4 

What is EPA's Role and How is the State-EPA Partnership Working? 

EPA's Office of Ground Water and Drinking Water, together with the ten EPA Regional offices 

oversee the activities of the states in their respective regions in connection with implementing 

states drinking water programs. EPA has been instrumental in providing outreach and 

training materials to help water systems understand their obligations in connection with 

particular rules or across-the-board capacity-building approaches. Rule training materials are 

most useful when they're provided "upfront" (i.e., at the same time or shortly after a new rule is 

promulgated) and EPA has been very attuned to that need in recent years. For instance, EPA's 

Simple Tools for Effective Performance (STEP guides) have been very valuable outreach tools in 

explaining various aspects of the program to small water systems. EPA also provides (through 

their Office of Research and Development) information about treatment options and analytical 

methods that water systems may use to help comply with drinking water regulations. States 

view this partnership as essential to achieving our collective goals. We believe the partnership 

should be (and currently is) one of mutual respect that allows each partner to do what they do 

best: 

For EPA, this involves establishing overarching national requirements, per the statute, 

along with needed tools and information. States believe that nationally-established 

requirements need to be based upon considerable state early involvement, so that the 

eventual requirements are as "implementable" as possible. 

• For states, this entails implementing those requirements in a manner consistent with 

local conditions. We would add here that it's not just the EPA-State partnership that 

states value. We also appreciate partnerships with training and technical assistance 

provider organizations, local utilities, other state organizations, and other branches of 

the Federal government (e.g., USGS, USDA, HHS-CDC). 

Early involvement of states (and other stakeholders, as appropriate) in EPA decision-making is 

an extremely important aspect of the state-EPA partnership - particularly given the fast-paced 
45 


79850.027

5 

and ever evolving nature of the challenges to safe drinking water. A couple of recent examples 

where this partnership worked particularly well were the promulgation of the final revised 

Total Colifonn Rule (TCR) and the Agency's recent decision to allow Consumer Confidence 

Reports (CCRs) to be distributed (by water utilities to customers) electronically. In the former 

case, a full and comprehensive stakeholder involvement process led to a final TCR rule (the 

principal Federal rule for controlling microbiological contaminants) that has been widely 

lauded by stakeholders as being both more practical and protective of public health. The CCR 

decision was based on effective pilot projects undertaken by selected states and water utilities to 

demonstrate that electronic dissemination of this "right-to-know" information can indeed be 

more efficient and effective than the current practice of mailing paper copies to all customers. 

(Those customers unable to receive the reports electronically will still be provided with paper 

copies under the new policy.) A final example of the state-EPA partnership is manifest in an 

initiative currently underway that's designed to more effectively leverage and target the tools of 

the Clean Water Act to protect sources of drinking water - thereby reducing treatment costs for 

water utilities and ultimately providing safer drinking water to customers. 

Technical Challenges in Implementing State Drinking Water Programs: 

To appreciate the challenge of ensuring compliance with the SDWA, it's important to 

understand the universe of water systems to which the Act applies. Public water systems in the 

U.s. can be divided into two principal groups: community water systems serving cities, villages, 

counties and various types of residential facilities (of which there are approximately 53,000) and 

non-community water systems (of which there are approximately 107,000). Non-community 

water systems can be further subdivided into non-transient water systems (e.g. schools and 

manufacturing facilities) and transient water systems (e.g. restaurants and camp grounds). Most 

of the citizens in the U.S. receive their water from large community water systems, but the 

overwhelming number of systems are small (serving less than 3,300 people). (77% of the nearly 

53,000 community water systems in the U.s. serve between 25 and 3,300 customers.) This fact 

has real implications for the challenges that states, EPA, and water systems themselves face in 

complying with drinking water regulations. Thus, effective public health protection must 
46 


79850.028

6 

involve strategies for both addressing the greater number of citizens served by larger water 

systems as well as approaches designed to help medium and small water systems comply with 

all applicable drinking water requirements. Further, for most of the above-mentioned noncommunity water systems, provision of drinking water to their customers is typically not their 

principal purpose - which has particular implications for the strategies states employ in support 

of such systems. 

In addition, states are challenged by complex regulations; many of which are risk-based (i.e., 

tailored) - that's a good thing generally, but challenging to implement. For example, the recent 

suite of regulations addressing microbial contaminants and disinfection by-products (known as 

"LT 2/ Stage 2") involves states assigning water treatment facilities into one of four "bins"--

based on the microbiological threat posed - and tailoring the regulatory requirements 

accordingly. States are further challenged by working with their Federal, other state, and local 

partners to address contaminated sources of drinking water. It's much more expensive (and 

sometimes simply not feasible) to remove contaminants at a drinking water treatment plant 

rather than prevent it from reaching sources of drinking water in the first instance. There is also 

a host of "emerging contaminants" (e.g., pharmaceuticals and personal care products) -- many 

of which are currently unregulated and whose risk is not well known. 

What are ASDWA's Views of Hydro fracturing? 

Certainly, one of the more multi-faceted technical challenges facing many state drinking water 

programs is the rapid expansion of oil and gas extraction using the recently enhanced 

techniques of hydrofracturing and the associated strains on water resources and water 

infrastructure. We believe there are an array of challenges associated with each stage in the life 

cycle of these drilling operations - from procuring the make-up water needed for injecting 

fracking fluids; to proper design and installation of wells; to safe disposal (or reuse) of the flowback waters. We understand that our colleagues in state oil and gas programs have been 

conscientiously revamping their regulations as well as enhancing their field presence to provide 

the needed oversight for these activities. We await the results of EPA's Congressionally 
47 


79850.029

7 

mandated four year study to help shed light on the relationship between hydraulic fracturing 

and drinking water resources and whether additional support of states' efforts is needed. 

Often overlooked is the strain placed on drinking water systems to meet rapidly increasing 

demands in areas of oil and gas development. Water is needed directly for drilling, as well as 

for support industries, midstream processors, and end users. Many local areas have 

experienced rapid population growth without adequate water infrastructure to support 

it. State drinking water programs, already strained to meet federal requirements under the 

Safe Drinking Water Act, are often engaged in providing technical assistance to water systems, 

assessing potential impacts to water supplies, and addressing water infrastructure needs. We 

think these efforts need both Federal and state support. 

Programmatic Challenges in Implementing State Drinking Water Programs - What Can 

Congress Do? 

States urgently need more resources for administering their programs. ryve also believe much 

more is needed for drinking water infrastructure; but in today's hearing, we're talking about 

funding for state drinking water personnel and programs.) While we understand that this 

Subcommittee has no jurisdiction over appropriations, we believe the input of this 

Subcommittee (and indeed the full Energy and Commerce Committee) to the House 

Appropriations Committee can be instrumental in helping address what we believe is a critical 

problem. State budgets are under extreme pressure and are unable, often times, to bridge the 

gap between currently inadequate Federal funding and the funding actually needed to 

administer Federal requirements. (ASDWA estimates at least a $100 million gap between 

funding needed and available Federal and State funding for state drinking water programs.) 

Inadequate funding has direct negative consequences for state drinking water program staffing. 

Most states are typically very short staffed and are simply not able to administer their programs 

in the manner they would prefer -- or that's envisioned under the SDW A. For instance, states 

struggle to perform sanitary surveys at public water systems on the frequency the SDWA calls 

for. This funding shortfall also makes it extremely difficult to attract and retain qualified staff. 
48 


79850.030

8 

State drinking water programs have two principal sources of Federal revenue to administer 

their programs: the Public Water Supply and Supervision (PWSS) grant and set-asides from the 

Drinking Water State Revolving Fund (SRF). The PWSS grant, which is the primary, and in 

some cases the only federal funding source for states has been "flat-lined" at roughly $100 

million per year for the past several years (on average, a wholly inadequate amount of about $2 

million per state). These funds are supplemented to some extent, in most states, by state 

General funds and/or state fees for service charged to public water systems. However, these 

state-based sources of are insufficient to ensure a baseline of effective drinking water protection 

throughout the country, as called for under the SDW A. There is no realistic expectation for 

significant increases in state funding in the near future. In light of the above-described shortfall, 

we strongly recommend that Congress appropriate at least $200 million annually for the PWSS 

grant to states. 

The PWSS grant, that the sates received to implement the SDWA, is very flexible and has been 

used by states to effectively address priorities, to the extent funding allows. In addition, since 

1996, some states have had access to set-asides from the Drinking Water SRF. While extremely 

helpful, set-asides have key" strings attached" under the terms of the SDW A and can only be 

used for certain types of activities. These funds are also "in competition" with use of those 

funds for critical drinking water infrastructure improvements. The amounts used for set-asides 

for state program activities (instead of "concrete and pipes" for drinking water treatment 

infrastructure) is often hotly contested within states. In some states, the Drinking Water SRF is 

administered by a separate agency and the drinking water Primacy agency has little or no 

access to set-asides. Boosting the appropriation for the PWSS grant to states would relieve the 

pressure on Drinking Water SRF funds and free up more for infrastructure uses. 
49 


79850.031

9 

What are ASDWA's Views on Alternative Financing Mechanisms for Drinking Water 

Infrastructnre? 

While not the subject of today's hearing, we're aware that there have been a number of 

discussions between some of our partner organizations in the utility community with both 

House and Senate Committees whose purview includes water and wastewater infrastructure. 

In the current budget climate (in which" offsets" from other programs must be identified before 

any new funding can be appropriated), we think the potential for unintended adverse 

consequences to the SRFs from creating and funding a new infrastructure program is high. 

We're also concerned about the implications for funding small water system infrastructure 

needs if a separate, new program -- primarily designed for large water systems -- changes the 

credit-worthiness of the SRF "portfolios" of loans. This is admittedly a complex discussion with 

many implications and subtleties which we look forward to discussing with you separately, in 

the future. It is important, however, to leave you with an understanding that, currently, the 

only source of capital available for addressing infrastructure needs for small, struggling public 

water systems is the Drinking Water SRF. 

What is the Role a/State Drinking Water Programs in Ensuring the Security a/Drinking 

Water? 

State drinking water programs are critical partners in emergency planning, response, and resiliency 

at all levels of government. States provide key resources and critical support regardless of whether 

the emergency is rooted in terrorism, natural disasters, or cyber intrusions. States continue to 

expand their efforts to reflect a more resilient" all hazards" approach to water security and to focus 

their efforts toward smaller water systems. These systems rely heavily on the states to help them 

meet their needs and identify potential funding sources. After seven years of supporting state 

security programs through a small grant in EPA's appropriation, no funds have been provided for 

this purpose since FY 09 and none were requested by EPA for FY 13. State drinking water 

programs need funds to continue to maintain and expand their security activities, particularly for 

small and medium water systems and to support utility-based mutual aid networks for all drinking 

water systems. 
50 


79850.032

10 

Summary 

States are doing a remarkable job, all things considered, and are carefully setting priorities to 

help ensure that public health protection remains preeminent. But, without question, if we are 

going to achieve our mutual goals, states need more funding and Congress could certainly help 

in this regard. A strong drinking water program supported by the Federal-state partnership 

and adequately funded by Congress will ensure that the quality of drinking water in this 

country will not deteriorate and, in fact, will continue to improve - so that the public can be 

assured that water from the tap is safe to drink, no matter where they find themselves in the 

this country. 
51 

Mr. SHIMKUS. Now I would like to recognize Mr. Jeffrey Steers. 

He is here on behalf of the Association of State and Territorial 

Solid Waste Management Officials. He works as the director of the 

Land Protection and Revitalization Division for the Virginia Department of Environmental Quality. 

Sir, welcome. And you are recognized for 5 minutes. 

STATEMENT OF JEFFERY STEERS 

Mr. STEERS. Good morning. And thank you, Chairman Shimkus 

and members of the subcommittee, for allowing me the opportunity 

to testify this morning. 

My name is Jeffrey Steers, and I am president of the Association 

of State and Territorial Waste Management Officials and am testifying on behalf of the organization. Our association represents the 

waste management and remediation programs of the 50 States, 5 

territories, and the District of Columbia. 

I would like to preface my remarks by commenting that our organization has a positive working relationship with U.S. EPA. Our 

collaborative efforts and problem-solving should not be underestimated. However, it is appropriate to have a conversation about the 

role, the significant role, that States play in regulating and protecting the environment, which is oftentimes understated. 

In implementing EPA’s delegated programs, such as in the hazardous waste and underground storage tank programs, States develop regulatory programs and approve permits, conduct inspections, provide compliance assistance, and, yes, take appropriate enforcement action when necessary. Implementing these programs, 

however, oftentimes involves duplication of effort and resources. In 

carrying out our responsibilities under these Federal programs, 

State management and cleanup programs have identified opportunities to gain efficiencies and work together to alleviate such duplicative energy. 

To illustrate this point, I would like to provide three examples: 

risk-based planning, area-wide approaches to remediation, and 

leveraging resources in voluntary cleanup programs. 

Let me begin with the value of State-based risk planning expertise. States are in a unique position to evaluate the specific conditions of how those conditions relate to the surrounding area. Having the knowledge and experience to assess environmental population and economic factors associated with a site make a riskbased approach to planning and prioritization possible. 

States are similarly better suited to assess risk and set priorities 

on permitting of inspections for regulated facilities. And the results 

thereby allow States to make better use of their resources. The regional knowledge and experience that the State environmental programs possess is vital in establishing the requirements for the protection of our citizens. 

Two States recently completed a 3-year pilot project on the benefits of a risk-based inspection planning strategy. Rather than using 

traditional models of a one-size-fits-all approach to targeting inspections, we looked at several opportunities to target specifically 

those high-risk facilities where it may have had poor performance 

in the compliance histories or are located in environmentally sensitive areas. 

52 

The discoveries that we found through these pilot projects included understanding that there were greater violations found during inspections at the higher-risk facilities and the opportunity for 

inspectors to work closer with the facilities to improve compliance 

rates over time. 

With respect to area-wide approaches to remediation, State-specific knowledge and natural economic resources in surrounding 

sites that are contaminated are particularly beneficial for States. 

And they have the expertise to evaluate how remediation at multiple sites can be integrated to an area-wide approach. 

The full advantage can be made of economic redevelopment opportunities, and it affords the opportunity to evaluate and recognize communities where they are often overburdened. It offers a 

more holistic approach to site cleanup and development. 

For example, several States effectively leveraged resources and 

brought parties to the table to address contaminated properties and 

stream sediment using an area-wide approach. In Ohio, two rivers 

within the Lake Erie Watershed, the Ottawa and Ashtabula, are 

shining examples where Federal, State, local governments, private 

parties, and nonprofit organizations worked together using an areawide approach to assess contamination, develop implementation, 

remediation, and restoration plans. 

The State of Ohio was a driving force in collaborating, using its 

knowledge of local issues and understanding of economic and development interests to facilitate the investment of over $50 million at 

dozens of sites and miles of contaminated river. The result in that 

watershed included restored habitat, creation of green spaces, and 

the construction of a world-class auto assembly plant on land that 

many had thought too blighted and contaminated to ever be reused. 

Regarding the leveraging of resources, States are able to develop 

voluntary cleanup programs and, doing so, leverage Federal funding to achieve results that benefit business, create parks, and build 

community resources. Brownfield programs are highly successful, 

due in large part to the flexibility that can be achieved when business and developers work together. 

In Virginia, for example, in my home State, we leveraged Federal 

brownfield grant funds and developed an economically distressed 

area of Roanoke, Virginia. The State played a critical role in bringing the parties together and creating synergies that transformed 23 

acres of blighted and contaminated land into vibrant medical research facilities with over $200 million in public and private investment. 

The time-critical development project not only relied upon the 

State to help bring the parties together, but it also necessitated the 

use of flexible approaches in assessing and remediating pollution 

on the property. Virginia’s voluntary cleanup program gave developers the certainty they needed with respect to future liability and, 

thus, allowed for the private funding of the project. 

In conclusion, ASTSWMO’s membership takes seriously its responsibility to protect the environment and human health, and we 

do so in the face of ongoing reductions in Federal budgets and 

funding—a paradigm shift from Federal command and control policies that limit the States’ being able to carry out our mission as 

53 

needed. We will work continually to collaborate with U.S. EPA and 

work with the local level at managing risk. 

Thank you. 

Mr. SHIMKUS. Thank you, Mr. Steers. 

[The prepared statement of Mr. Steers follows:] 

54 


79850.033

Association of State and Territorial 

A§T§WMD 

SoHd Waste Management Officials 

u.s. House of Representatives 

Committee on Energy and Commerce 

Subcommittee on Environment and the Economy 

Hearing 

""The Role of the States in Protecting the Environment Under Current Law" 

February 15, 2013 

Testimony of 

Jeffery Steers 

On Behalf of the 

Association of State and Territorial Solid Waste Management Officials 

The Association of State and Territorial Solid Waste Management Officials (ASTSWMO) is an 

association representing the waste management and remediation programs of the 50 States, 

five Territories and the District of Columbia (States). Our membership includes State program 

experts with individual responsibility for the regulation or management of wastes and 

1 
55 


79850.034

hazardous substances, including remediation, tanks, materials management and environmental 

sustainability programs. 

I would like to preface my remarks with commenting that our organization does enjoy a 

positive working relationship with the u.s. Environmental Protection Agency. Our collaborative 

efforts and problem solving should not be underestimated. However, it is appropriate to have 

a conversation about the significant role of States in environmental protection, which is 

oftentimes understated. 

In implementing EPA delegated programs, such as hazardous waste and underground storage 

tanks, States develop regulatory programs, review and approve permits, monitor and assess 

permit and program compliance, provide compliance assistance and information to the 

regulated community and the public, conduct inspections, and take enforcement actions. 

States fulfill their responsibilities for these federal programs even though federal funds diminish 

each year. 

These delegated programs often involve unnecessary State and federal duplication of effort. A 

strong State lead in environmental waste programs has many benefits. An Associate Professor 

at California State University, Northridge, wrote: "the redundancy in state and federal programs 

may have made more sense in the early days of the EPA, but such duplication is expensive as 

well as unnecessary in our more sophisticated era of environmental protection."l The article 

was written in 1995 - nearly twenty years ago. 

2 
56 


79850.035

In carrying out their responsibilities under delegated federal programs, State waste 

management and cleanup programs have also identified opportunities for innovations and 

efficiencies in program implementation that alleviate the duplication of State and federal 

efforts. Risk based planning, an area-wide approach to remediation, and leveraging resources 

in voluntary cleanup programs provide three illustrations of the benefits of a strong State role 

in waste management and cleanup. 

Value of State Risk Based Planning Expertise 

States are in a unique position to evaluate site specific conditions and how those conditions 

relate to the surrounding area. Having the knowledge and experience to assess the 

environment, population and economic factors associated with a site make a risk based 

approach to planning and prioritization possible in a manner that is protective of human health 

and the environment. States are similarly better suited to assess risk and set priorities on 

permitting and inspections for regulated facilities. As such, it can result in more efficient and 

more effective results. Thus, States are able to make better use of limited resources. The 

regional knowledge and experience that State environmental programs possess is vital in 

establishing requirements for the protection of the State's citizens. 

Case Study 

Two States recently completed three year pilot projects on the benefits of risk based inspection 

(RBIS) planning. The study used a targeted approach to focus inspections at higher risk facilities 

(e.g., past compliance history, environmental sensitivity, multi-media transfers, sector 

initiatives) rather than using the traditional inspection strategy of considering all facilities the 

3 
57 


79850.036

same. The results indicate that targeting resources at higher risk sites resulted in the discovery 

of a greater number of violations. Over time, these riskier facilities were improving their 

compliance as inspectors focused more attention on them. Allowing States the flexibility to 

target certain facilities or sectors of industry in compliance assessments results in an overall 

improvement to compliance rates. 

Area-wide approach to remediation 

State specific knowledge of the natural and economic resources in areas surrounding 

contaminated sites can be particularly beneficial in another way. States have the expertise to 

evaluate how remediation at multiple sites can be integrated for an area-wide approach. Areawide remediation planning encourages the development of an entire area so that full 

advantage can be made of economic and redevelopment opportunities. It also affords an 

opportunity to evaluate and recognize communities that are overburdened. It offers a more 

holistic approach to site cleanup and development. 

Case Study 

Several States have effectively leveraged resources and brought parties to the table to address 

contaminated properties and stream sediment using an area-wide approach. For example, in 

Ohio, two rivers within the lake Erie watershed (the Ottawa and Ashtabula Rivers) are shining 

examples where federal, State, local governments, private parties and nonprofit organizations 

worked together using an area-wide approach to assess contamination, develop and implement 

remediation and restoration plans. The State of Ohio was a driving force in this collaboration, 

using its knowledge of the local issues along with an understanding of the economic 

4 
58 


79850.037

development interests to facilitate the investment of over $50 million at dozens of sites and 

miles of river sediment. The result within the watershed includes restored habitat, creation of 

green spaces and the construction of a world class auto assembly plant on land that many had 

thought too blighted and contaminated to ever consider reusing. All of this was accomplished 

holistically by realizing the economies of scale in managing the costs associated with the large 

scale remediation of several sites and river sediment. This collaboration by all parties was 

accomplished without exerting burdensome federal authorities under RCRA and CERCLA. 

Leveraging resources 

States are able to develop voluntary cleanup programs, and in doing leverage federal funding to 

achieve results that benefit business, create parks, and build community resources. 

Brownfields programs are highly successful due in large part to the flexibility that can be 

achieved when businesses, developers, local governments and the States work together in a 

cooperative manner. Contaminated properties are often more suited to be addressed through 

State voluntary cleanup programs in lieu of federal government authorities. While RCRA 

Corrective Action and Superfund programs remain important, the flexibilities inherent in State 

voluntary programs are better suited to address contamination when economic redevelopment 

is a driver. All too often, the long administrative process and cleanup standards associated with 

RCRA and CERCLA that are one size fits all inhibit reinvestment and job creation. One size fits 

all remediation does not work in these circumstances. Economic development projects are 

time critical and depend upon certainty with respect to future liability. State voluntary cleanup 

5 
59 


79850.038

programs inherently provide for this certainty through appropriate site specific risk 

management in a timely fashion. 

Case Study 

Virginia successfully leveraged federal Brownfield grant funds with State and local assistance, 

helping to redevelop an economically depressed area of Roanoke Virginia. The State played a 

critical role in bringing together the parties and creating synergies that transformed 23-acres of 

blighted and contaminated land into vibrant medical research facilities, with over $200,000,000 

in public and private investment. The time critical development project not only relied upon 

Virginia to help bring together the parties, but also necessitated the use of a flexible approach 

to address the assessment and remediation of pollution on the property. Using Virginia's 

Voluntary Cleanup Program, developers were given certainty with respect to future liabilities, 

thus allowing for the private funding of the project. 

Conclusion 

At a recent workshop highlighting the States' roles in environmental protection2

, a 

Massachusetts professor noted that "The role of states in environmental protection is more 

critical than ever, given the virtual stalemate at the federal level on many of the most pressing 

environmental issues of the day." The fact that States are taking the lead in developing policies 

and regulations for emerging issues, such as those that associated with the biotechnology 

industry, in the absence of federal guidance, at the same time they are fulfilling their 

responsibilities under federal delegated programs, attests to the benefits of State primacy in 

environmental regulation. Understanding the local communities allows States to apply risk 

6 
60 


79850.039

based approaches that maximize opportunities for area wide remediation and leveraging of 

resources that ultimately benefit the environment, economic development and the citizens of 

the States. 

I Hatfield, Thomas H., "California Environmental Goals and Policy, Part III: Federal and State Parallelism In 

Environmental Regulation", Center for California Studies, California State University, May 1995. 

'''Environmental Policy in Massachusetts: Promoting Safe Development in a Time of Economic Uncertainty", 

Northeastern University, October 2012. 

7 
61 

Mr. SHIMKUS. I would now like to recognize Ms. Teresa Marks, 

who is director of the Arkansas Department of Environmental 

Quality, on behalf of the Environmental Council of States. 

Welcome, ma’am. 

STATEMENT OF TERESA MARKS 

Ms. MARKS. Thank you, Mr. Chairman and members of the committee. Thank you for inviting me here today to discuss the role of 

State environmental agencies in protecting our Nation’s environment. 

As the chairman told you, I am representing the Environmental 

Council of States, or we refer to them as ECOS, whose members 

are the leaders of the State and territorial environmental protection agencies. I am the current president. 

My comments are primarily directed at the Federal programs enacted through legislation by Congress and administered by the 

United States Environmental Protection Agency. These include, for 

example, the Clean Air Act, the Clean Water Act, the Safe Drinking Water Act, and the Resource Conservation and Recovery Act. 

There are certainly other applicable statutes, but these are the four 

that are most integral to our environmental protection efforts. 

EPA and the States each play a complementary role in administering these laws. In general, EPA has oversight and rule 

issuance authority, while the States implement the day-to-day activities needed to ensure the programs are carried out on the local 

level. 

States obtain the authority to implement the Federal programs 

from EPA through a delegation process. Delegation occurs once for 

each program and is updated as new rules are issued or changed. 

Nearly every State has taken delegation of nearly every such 

Federal program. As of 2013, ECOS and EPA agree that 100 percent of the Clean Air Act programs are delegated; all but one State 

has the Safe Drinking Water program; all but two have the RCRA 

or the hazardous waste program. There are still four States that 

do not have delegation for the Clean Water Act discharge permitting program. You can see that the States assumed operation of a 

Federal environmental program in 193 out of the possible 200 

cases, or 96.5 percent of the time. 

While operating these programs, the State agencies issue permits, conduct inspections, monitor pollutants, conduct enforcement, 

and work on many other related matters, such as setting standards 

for watersheds. States conduct about 96 percent of the inspections 

at regulated facilities. Pursuant to ECOS data, when violations are 

found, States conduct about 90 percent of the enforcement cases. 

States are the source of about 94 percent of the data found in 

EPA’s six biggest air, water, and waste databases. The States also 

review and issue nearly all of the water, air, and waste permits 

across the Nation. 

The States’ implementation of the delegated programs provides 

benefits to government, the regulated community, and our citizens. 

States pay for the majority of the cost of operating these delegated 

programs, thereby saving the Federal Government millions of dollars. ECOS has no firm estimates of the cost to the Federal GovVerDate Nov 24 2008 14:14 May 21, 2013 Jkt 037690 PO 00000 Frm 00067 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 113\113-7 CHRIS
62 

ernment if it were to operate these programs, but we are confident 

it would be significantly greater than the current EPA budget. 

The operation of the environmental programs by the States also 

provide for a more efficient and effective regulation of environmental issues, in that the States are more familiar with their regulated industries and they are located geographically closer to them, 

thereby providing more timely compliance assistance in response to 

citizen concerns and complaints. In addition, States are generally 

able to provide a quicker turnaround on permit issuance, renewal, 

and modification. 

States contribute to our successes on environmental protection in 

other key ways. We are often the first to see the impacts of new 

pollution sources, and therefore we react quickly. We often develop 

innovative ways to address environmental challenges. We can 

sometimes tailor environmental rules to fit local conditions. Some 

States may also implement more stringent rules in cases where 

such a rule is needed to protect a State resource that is not addressed in national legislation. 

Both ECOS and EPA understand that a cooperative relationship 

is important to the successful implementation of national environmental policies. States are coregulators with EPA, and in addition 

to implementing the Federal laws, they also implement their own 

State laws. 

While States and EPA agree on how to address most matters, 

our different roles mean that sometimes States and EPA see our 

mutual challenges somewhat differently. Sometimes these views 

are driven by concerns that more is being asked of the States without the provision of new resources. Sometimes a State may think 

an EPA-issued rule or policy would result in a fundamental shift 

in the State-Federal relationship. We usually work through these 

differences in a professional manner, and we are usually successful 

in resolving them. 

As mentioned previously, State environmental agencies are coregulators with the U.S. Environmental Protection Agency. Both 

agencies are key to our joint mission to protect human health and 

the environment. I hope I have given you the information you need 

to understand how vital the State role is and how much we, as 

States, contribute to this joint mission. 

Mr. SHIMKUS. Thank you very much, ma’am. 

[The prepared statement of Ms. Marks follows:] 

63 


79850.040

Testimony 

Hearing on "The Role of the States in Protecting the Environment Under Current Law" 

Subcommittee on Environment and the Economy 

Committee on Energy and Commerce 

Friday, February 15,2013 

by 

Teresa Marks, Director 

Arkansas Department of Environmental Quality 

and 

President, Environmental Council of the States 

Main Points 

1. State environmental agencies are co-regulators with the U.S. Environmental Protection 

Agency in a national system of environmental protection. 

2. The state agencies and the US EPA play complementary roles in this national system. 

3. States now implement 96.5% of the federal programs that can be delegated to the states. 

4. State agencies conduct over 90% of the environmental inspections, enforcement, and 

environmental data collection, and issue a similar amount of all the environmental 

permits. 

5. States supply most of the funding for the implementation of the delegated federal 

programs - typically 80% of the actual cost. 

6. States are concerned about the increasing workload that is being asked of the states 

coming at a time when federal funding support for states is declining. 

Thank you for inviting me here today to talk about the role of state environmental agencies in 

protecting our nation's environment. I am representing the Environmental Council of the States 

(ECOS), whose members are the leaders of the state and territorial environmental protection 

agencies. I am the current President of ECOS. 
64 


79850.041

Environmental protection is a multi-faceted endeavor and requires the contributions and 

cooperation of many persons and entities, including the federal government and the states. My 

comments are primarily directed at the federal programs enacted through legislation by Congress 

and administered by the United States Environmental Protection Agency (EPA). These include, 

for example, the Clean Air Act, the Clean Water Act, the Safe Drinking Water Act and the 

Resource Conservation and Recovery Act. Although there are other such statutes, these are the 

four that are most integral to our environmental protection efforts. 

EPA and the states each playa complementary role in administering these laws. In general, EPA 

issues rules to implement the provisions of the law and acts as an oversight authority while the 

states implement the day-to-day actions needed. For example, EPA will issue rules, may set 

standards (although states sometimes do this), conduct research and assist states with technical 

matters and with funding. EPA also retains the right to supersede state actions should it find they 

are in conflict with federal law. 

One of the basic interactions between states and EPA is the "delegation" process. "Delegation" is 

a term I will use to describe the process EPA uses to transfer the operation of all or part ofthe 

program implementation to the states. Delegation is sometimes called "primacy" or 

"assumption." Delegation occurs once for the entire program and is updated as new rules are 

issued or are changed. Although states are not required to operate federal programs through 

delegation, most do. 

2 
65 


79850.042

Nearly every state has taken delegation of nearly every program. As of2013, ECOS and EPA 

agree that 100% of the Clean Air Act programs are delegated. All but one state has the Safe 

Drinking Water program and all but two have the RCRA (hazardous waste) program. There are 

still four states that do not have delegation for the Clean Water Act discharge permitting 

program. You can see that the states assumed operation of a federal environmental program in 

193 out of the possible 200 cases, or 96.5% of the time. 

While operating these programs, the state agencies issue permits, conduct inspections, monitor 

pollutants, conduct enforcement, and work on many other related matters, such as setting 

standards for watersheds. These activities constitute the majority of such environmental actions 

taken each year by any level of government. 

States conduct about 96% of the inspections at regulated facilities. Pursuant to ECOS data, states 

conduct about 90% of the enforcement cases when violations are found. l States are the source of 

about 94% of the data found in EPA's six biggest air, water, and waste databases.2 

The states also review and issue nearly all of the air, water and waste permits across the nation. 

The states' implementation of the delegated programs provides benefits to government, the 

regulated community and our citizens. States pay for about 80% of the cost of operating these 

delegated programs, thereby saving the federal government millions of dollars. ECOS has no 

J Brown, R. Steven and Valerie Green. Report to Congress: State Environmel1lal Agency Contributions to 

Enforcement and Compliance, (Environmental Council oftbe States, Washington) 2001. 

2 Environmel1lai Pollutant Reporting Data in EPA's National Systems: Data Collection by State Agencies, (U.S. 

EPA and Environmental Council ofthe States), 1999. 

3 
66 


79850.043

finn estimates of the potential cost to the federal government to operate these programs, but we 

are confident it would be significantly greater than the current EPA budget. 

The operation of the environmental programs by the states also provides for more efficient and 

effective regulation of environmental issues. The states, having more familiarity with their 

regulated industries and being located in closer proximity thereto, generally provide timelier 

compliance assistance and response to citizen concerns and complaints. In addition, states are 

generally able to provide a quicker turnaround on penn it issuance, renewal and modification. 

States contribute to our successes on environmental protection in other key ways. We are often 

the first to see the impacts of new pollution sources. We often develop innovative ways to 

address environmental challenges. We can sometimes tailor environmental rules as needed to fit 

local conditions. States may also implement more stringent rules in cases where such a rule is 

needed to protect a state resource that is not addressed in national legislation. 

Both ECOS and EPA understand that a cooperative relationship is important to the successful 

implementation of national environmental policies. States are co-regulators with EPA, and 

implement most of the federal laws, but they also have their own state laws. While states and 

EPA agree on how to address most matters, our different roles mean that sometimes states and 

EPA see our mutual challenges somewhat differently. Sometimes these views are driven by 

concerns that more is being asked of the states without the provision of new resources. 

Sometimes states may think Certain EPA actions could cause a fundamental shift in the state4 
67 


79850.044

federal relationship. We usually work through these differences in a professional manner and we 

are usually successful in resolving them. 

EPA reports the number ofrules it issues and ECOS reviews those regularly. Our review is 

particularly concerned with any impact the rule may have on state and local government. ECOS 

also monitors the annual appropriations to "categorical grants," which is the part of EPA's 

budget that assists states in implementing the delegated programs. 

T call to your attention the graph entitled "Balancing Workload and Budgets." This graph was 

developed by ECOS staff and tracks three things: the number of "completed actions" (i.e., 

"rules") that EPA issues each year, the cumulative number of those rules over the past few years, 

and the budget provided to the states to implement those rules. The first two items concerning 

the number of rules are further divided into their impact, such as "significant," "moderate," or 

"no substantive impact." 

The number of rules completed each year is the small set of bars. You will see that varies 

between 20 and 30 per year. Behind the small set of bars is a much taller set that shows the 

cumulative impact. Beginning with 2007 by the time we reach 2012, we have about 140 new 

rules. It is important to note that ECOS rarely opposes these rules. We acknowledge that many of 

them will have a positive impact on human health or the environment, or that they may simply be 

court -ordered. 

5 
68 


79850.045

Ballllleillg Workload Illld Blldgets 

Now let us turn to the green line on the chart. This line shows the cumulative change that states 

have seen to the "categorical grant" part of EPA's budget during the same years. As you can see, 

some years we lost funds, some years we gained funds. In 2013, with a 5% cut coming from 

sequestration we seem likely to take the biggest single year cut in recent memory. As a result, 

states find themselves in 2013 with a lot more rules, and the possibility of a lot less money to 

implement them. States are very unsure how much longer these two trends can continue before 

the core environmental programs in each state begin to significantly suffer. 

Tn conclusion, the state environmental agencies are co-regulators with the U.S. Environmental 

Protection Agency. Both agencies are key to our joint mission to protect human health and the 

6 
69 


79850.046

environment. I hope this information has been helpful in understanding the vital role the states 

play in our nation's environmental protection efforts. 

7 
70 

Mr. SHIMKUS. And now I would like to recognize, on behalf of the 

National Caucus of Environmental Legislators, the Honorable 

Pricey Harrison. She is from the North Carolina House of Representatives. 

Ma’am, welcome. You are recognized for 5 minutes. 

STATEMENT OF THE HONORABLE PRICEY HARRISON 

Ms. HARRISON. Thank you, Mr. Chairman and members of the 

committee, for the opportunity to speak to you today. 

I am Pricey Harrison, serving in my fifth term in the North 

Carolina House. I am also here as a representative of the National 

Caucus of Environmental Legislators. I am on their board of directors. It is an organization of 850 environmentally progressive legislators from around the country. It is a bipartisan organization. 

On the topic of today’s hearing regarding the States’ role in protecting the environment under current law, I think most of us 

agree that the States play an important role. 

My own State of North Carolina has had a tradition of environmental leadership and passed landmark legislation in 2002 called 

the Clean Smokestacks Act that established an ambitious timetable 

for reducing emissions from our coal-fired power plants and allowed our utilities to stagger costs of pollution-control technologies 

over a longer period while keeping State rates low and providing 

significant health benefits. 

But the States can’t do it alone. One only has to think back to 

the Cuyahoga River on fire and cities cloaked in smog as evidence 

of the inability of some States to protect the public health and environment of their citizens. It was during that time in 1970 that the 

National Environmental Policy Act was passed and the EPA was 

established with overwhelming bipartisan support. Other environmental measures were also enacted, such as the Clean Water Act, 

the Clean Air Act, and the Safe Drinking Water Act. 

I think Congress recognized the importance of a Federal role in 

providing a backstop of protection, especially in cases where States 

are incapable, unable, or unwilling to act to protect the public 

health and the environment. And, as Congressman Tonko pointed 

out, we know pollution doesn’t observe political boundaries and we 

are all downwind or downstream from pollution sources. 

My testimony focuses on two areas where our State needs help 

from the EPA and other Federal agencies, and that is coal ash and 

hydraulic fracturing. 

North Carolina ranks tenth in the country in coal ash production. We have more high-hazard ponds than any other State, yet 

we have a complete absence of State regulations for safe disposal 

or containment of the sometimes toxic product. We have no liner 

requirements for our ponds; no closure, siting, or structural stability requirements; no reporting requirements; no emergency action plans; no plans for dealing with legacy ponds despite the fact 

that several coal-fired power plants are converting to cleaner-burning natural gas. Our lax regulation of coal ash has resulted in seepage and exceedances of a variety of toxins, from arsenic to selenium 

to boron to cadmium, and the list goes on. 

I wish we were more like Maryland. I have tried for years since 

the Kingston spill brought attention to the issue in our State to 

71 

enact legislation for safer regulation of coal ash and haven’t been 

able to even get a hearing, and that includes when my party was 

in charge of State government. I think that speaks, in part, to the 

enormous influence of the regulated industries at the State legislatures, both through their lobbies and campaign support. I think we 

are more vulnerable to those pressures and less equipped to deal 

with them and the complexities in many of these complicated environmental issues. 

Regarding fracking, we are in a similar position. We have had 

very little history of extractive industries in our State, and, prior 

to last summer, fracking was prohibited. But we have rushed to 

permit fracking and established the Mining and Energy Commission and charged them with establishing rules over the next 18 

months. But our agencies are ill-equipped to do the work needed 

to properly regulate and enforce natural-gas drilling, and strong 

Federal oversight is needed. 

It is a problem for us that the industry is exempted from so 

many Federal protections. We have had a significant change of 

leadership in our State in the past 2 years, and they seem to be 

seized with an enthusiasm for deregulation. We have undertaken 

a number of measures to weaken environmental protections. 

Legislation—and there was a chart included in your handouts, 

and I am sorry I don’t have a slide, but this is what rulemaking 

is like in North Carolina now for environmental and public health 

regulations. That legislation contained language which is significant which prevents any State regulations from being stronger 

than any Federal standard. And that means we are completely dependent on the Federal Government for setting standards to protect our public health and our environment. 

Last week, the Senate passed legislation that wipes out the 

membership of many of our environmental commissions as well as 

our utilities commission and removes conflict-of-interest restraints 

and designated seats for specialized and diverse knowledge and experience. We have also had legislation that will sunset all rules in 

our administrative code, and they will have to be rejustified to be 

reenacted. 

Budget issues have been challenging in North Carolina, as well. 

We have slashed our Department of Environment’s budget by 40 

percent off of 2005–2006 levels, and our State is not alone in this 

trend. 

So I am here today to plead with you to let the EPA do its job. 

Our State is not unique in its inability or intransigence to protect 

the public health and environment of its citizens from issues relating to coal ash and fracking. We need the involvement of the Federal agencies. It is vital that the Federal Government be allowed 

to establish at least minimal standards of health and safety regulations to ensure effective oversight of State agencies. 

Thank you for the opportunity. 

Mr. SHIMKUS. Thank you, ma’am. 

[The prepared statement of Ms. Harrison follows:] 

72 


79850.047

Pricey Harrison 

Representative of the 57th District of North Carolina 

National Caucus of Environmental Legislators 

Testimony on 'The Role of the States in Protecting the Environment Under Current 

Law" before the House Committee on Energy and Commerce, Subcommittee on 

Environment and the Economy 

February 15, 2013 

Thank you Chairman Shimkus and members of the Subcommittee for the opportunity to 

speak. My name is Pricey Harrison and I am serving in my fifth term representing the 

57th district in the North Carolina House of Representatives. I am here as a member of 

the Board of Directors of the National Caucus of Environmental Legislators, an 

organization of nearly 850 environmentally progressive legislators from around the 

country. 

On the topic of today's hearing, "The role of the states in protecting the environment 

under current law," I assume that most panelists and members of the committee agree 

that states have always had - and always will have - an important role in protecting 

the environment. My own state of North Carolina has a tradition of environmental 

leadership and passed a landmark law in 2002 called the Clean Smokestacks Act, 

which put our coal-fired power plants on a Significantly more ambitious timescale for 
73 


79850.048

reducing air pollution emissions than federal rules require. A recent study by Duke 

University concluded that the passage of the Clean Smokestacks Act allowed North 

Carolina to stagger the cost of pollution-control technologies over a longer period and 

positioned the state to comply with the EPA rules while providing health benefits, 

reduced costs and protection from a sudden spike in consumer electricity rates. 

However, state efforts to protect the environment and public health have time and again 

proven insufficient to attain the level of environmental protection demanded by the 

American people. It was the demonstrable failure of many state agencies to regulate 

polluting industries effectively that created the overwhelming bipartisan support for a 

federal role in environmental protection in the first place, resulting in the National 

Environmental Policy Act and establishment of the Environmental Protection Agency in 

1970. The spectacle of the Cuyahoga River fires and cities cloaked in smog provided 

sufficient evidence for most Americans that states were unable to go it alone. 

The question is not whether states or the federal government have a role in 

environmental protection, but whether each is playing its appropriate role under current 

law. The purpose of my testimony today is to illustrate how my state of North Carolina is 

not playing an effective role in environmental protection and how our agencies' inability 

to address the growing problem of water pollution from coal ash disposal sites perfectly 

demonstrates the need for a proactive and forceful role of the federal government. 

I'm also here to speak on behalf of people that my state is failing to protect - people 
74 


79850.049

like Sara Behnke, a mother and cancer survivor living near Mountain Island Lake who 

worries about the slow contamination of leaking coal ash ponds at Duke Energy's 

Riverbend plant into groundwater and into the lake near her home. She worries about 

the threat of a health and safety crisis should the dam break into the lake, which is the 

drinking water supply of 860,000 people in the Charlotte, N.C. area. And now that Duke 

Energy has announced Riverbend will be retired this year, Sara is particularly 

concerned about the lack of any state or federal plan to deal with legacy coal ash pond 

sites, which, if the state doesn't act, could pose an ongoing threat to her family and 

community and leach heavy metals into groundwater for decades to come. 

Another coal ash dam located near the Sutton plant in Wilmington, N.C., was breached 

in 2010. Fortunately, that dam was not a "high hazard" dam and there was no loss of life 

or environmental damage on the scale that occurred at TVA's Kingston plant in 2008. 

The greater concern about coal ash ponds at the Sutton plant for the low-income 

communities living nearby are the high arsenic levels - up to 29 times the federal 

maximum contaminant levels - that have been found within a half mile of their wells. 

These citizens' situation is made worse by the growing power of utilities to influence 

state lawmakers and a wave of anti-regulatory fervor that has swept across state 

government. The bottom line is that a strong federal role in environmental protection is 

the only hope these citizens have to gain basic protections for their health, environment 

and quality of life. 
75 


79850.050

A Growing Problem of Coal Ash Pollution in North Carolina 

After the TVA disaster prompted EPA to evaluate the risks posed by hundreds of similar 

coal ash dams at power plants across the country, the agency published a report 

documenting 70 known cases of groundwater pollution and 44 coal ash dams that are 

considered "high hazard" because a failure would likely result in loss of life. Thirteen of 

those high hazard dams are in North Carolina. 

Environmental watchdog groups then reported 681 exceedances of arsenic, boron, 

cadmium, chloride, chromium, iron, lead, manganese, pH, sulfate and total dissolved 

solids in voluntary groundwater monitoring reports conducted by Progress and Duke 

Energy near their coal ash ponds. Another report documented 31 additional cases of 

groundwater pollution from coal ash dams that were not included in EPA's report, six of 

which were in North Carolina. 

All of this new information prompted The Charlotte Observer to write in March 2010, 

"The reports of additional contamination at N.C. sites, such as Duke's Belews Creek 

power plant, suggest that state and federal officials have not been as aggressive as 

they should in monitoring pollution, informing the public about hazards and taking 

appropriate steps to safeguard water supplies." 

As a result of all the new information and media attention, the N. C. Division of Water 

Quality required Duke and Progress Energy to drill additional monitoring wells 500 feet 
76 


79850.051

from the edge of coal ash dams to determine whether groundwater contamination had 

spread further. Thanks to these new reporting requirements and research by academic 

and public interest groups, a clear picture is emerging of the threat North Carolinians 

face from poorly regulated coal ash sites. The new reporting has not, however, resulted 

in any enforcement actions against polluters or any substantive efforts by the state to 

actually reduce or eliminate the pollution originating from coal ash ponds. 

For example, little has been done to reduce the threat of water contamination from coal 

ash ponds at the Sutton Plant where levels of arsenic, boron, manganese and iron in 

groundwater testing at the plant all exceed North Carolina standards. Monitoring also 

indicates that the contamination is migrating outside of the state designated compliance 

boundary on-site. Despite the N.C. Department of Environment and Natural Resources 

issuing a notice of violation and request for corrective action, no action has been taken. 

Now, as Duke-Progress modernizes its fleet, retiring the oldest coal plants in the state 

and converting them to natural gas generation, there is no clear plan to deal with legacy 

coal ash sites. Duke announced that in April it will close the Riverbend Plant, which has 

operated since the 1920s. The utility, however, has not said what it plans to do with the 

two coal ash ponds at the plant that contains 2.7 million gallons of waste. 

Removal of the coal ash would be expensive and likely require a private partnership, as 

no municipal landfill would be large enough to store it. Duke will likely propose a plan to 

cap the basin, which, if approved, will require N.C. Division of Water Quality to continue 
77 


79850.052

monitoring groundwater at the legacy site for years to come. 

North Carolina is Moving Too Fast on Fracking 

At the same time that state agencies are struggling to protect the environment and 

human health by effectively regulating coal-burning utilities, the North Carolina General 

Assembly is rushing to bring hydraulic fracturing for natural gas to the state. Last year, 

an industry dominated Mining and Energy Commission was created to develop a 

comprehensive set of regulations to protect Piedmont landowners and communities 

where drilling will likely take place. In the meantime though, a moratorium on drilling 

permits was issued to allow the commission to promulgate regulations and give the 

General Assembly the opportunity to review those regulations before allowing the 

issuance of permits. 

A new bill in the state Senate, which cleared a committee this week, would allow 

permitting of hydraulic fracturing to begin in North Carolina in two years, no matter the 

status of the state's regulatory development, resources, or staffing. To change the 

timeline now and limit the General Assembly's and the public's opportunity to provide 

input on regulations eliminates a critical step in the review process. 

Experienced state regulators, industry and environmental representatives have 

identified more than 70 recommended regulatory needs for a North Carolina oil and gas 

program. But in the absence of strong federal standards, the race to the bottom and the 
78 


79850.053

threats to water and air quality, and the health of residents and Piedmont communities 

in the path of gas development are very real. 

As the North Carolina General Assembly recklessly pushes to allow fracking sooner 

rather than later, our state agencies may be ill equipped to do the work needed to 

properly regulate and enforce natural gas drilling. Strong federal oversight is needed to 

ensure that state regulatory programs have standards that will protect our citizens from 

harm. 

Handcuffing The State Enforcers of Environmental and Human Health Protections 

North Carolina's tradition of environmental leadership has been turned on its head in the 

past few years. We brought much of it on ourselves through a series of legislative 

measures designed to eviscerate the state's ability and authority to enforce 

environmental protections. 

The state effectively abdicated its responsibility for developing science-based health 

and environmental protections when the General Assembly passed S781 , which says, 

"An agency may adopt only rules that are expressly authorized by federal or State law 

and that are necessary to serve the public interest." 
79 


79850.054

Some legal analysts are concerned with changes to the administrative review process 

concerning who has final decision-making authority in Clean Air Act, Clean Water Act, 

and Resource Conservation and Recovery Act legal issues. The changes run counter to 

the Memorandum of Agreement between the state and the EPA, which outlines federal 

legal requirements under which the state has the authority to administer the Clean Air 

Act, Clean Water Act and RCRA, or risk de-delegation of these programs. 

It could get far worse if the Assembly passes S1 0, the "Government Reorganization and 

Efficiency Act," legislation that seeks to remove 131 members of state boards and 

commissions, including the Environmental Management Commission, the Utilities 

Commission and the Coastal Resources Commission. S10 will disrupt institutional 

knowledge and experience, allow the appointment of commissioners with financial 

conflicts of interest and will allow commissioners with no specialized and diverse 

knowledge and experience in the various areas related to the subject matter of the 

commission. 

Budget issues have also increased challenges state agencies face when attempting to 

protect and manage environmental resources in a responsible manner. 

Not only was DENR's budget cut the last biennium by 40% of 2005 funding levels, 

there was the threat of DENR regional offices being defunded. The final version of the 

state budget did subject DENR and other agencies to a "justification review" in order to 

keep their regional offices open. 
80 


79850.055

Industries who benefit from this regulatory scarcity have a part to playas well. Duke and 

Progress Energy merged last year, making them the largest utility in the country. Duke 

Energy has been the top contributor to more than 140 members of Congress for at least 

one year for the past 13 years. Duke Energy also spent almost $5 million dollars on 

lobbying efforts in 2012. Significant funds have been contributed to state level races as 

well. And I can speak from personal experience that it is nearly impossible to enact 

legislation that the public utilities have not agreed to. 

Congress should let EPA do its job 

The obvious inability of North Carolina to protect the health of our citizens and 

environment from coal ash is partially the result of factors that are unique to the state at 

this time, but my conversations with other members of the National Caucus of 

Environmental Legislators indicate that many other states are performing just as badly. 

Moreover, any state is likely to be ill-equipped to confront problems like coal ash 

disposal because an effective solution requires the involvement of federal agencies. 

For instance, the Congressional Research Service issued a report in December 2012, 

on pending legislation (entitled H.R. 2273 and S.3512 in the 112th Congress) that was 

designed to eliminate the federal government's role in regulating coal ash and other 
81 


79850.056

coal combustion residuals (CCR) by putting permitting and enforcement authority 

entirely in the hands of the states. The report described the approach taken by the bill's 

authors as "unprecedented" and criticized the bills for lacking a clear purpose and for 

failing to ensure state adoption and implementation of minimum standards "necessary 

to protect human health and the environment." 

Overall, the harsh CRS report serves as a warning to members of Congress against 

reckless and single-minded attempts to bypass established federal authority for 

environmental enforcement. The attached document entitled "New CRS Report Finds 

Coal Ash Bills Will Not Ensure Protection of Public Health" provides a summary of eight 

major failings the CRS report found in the bills' attempts to circumvent federal authority, 

including: 

• Lack of any standard to protect human health and the environment; 

• Creating unclear, ambiguous, and altogether missing standards; 

• Failure to ensure federal backstop authority and minimum standards; 

• Lack of deadlines to issue permits or compel compliance with permits; 

• Lack of requirements to reduce threats from ash ponds and toxic dust. 

The bottom line is that the federal role in protecting the environment is essential and 

irreplaceable for protecting the health of Americans and the quality of our environment. 

While federal attempts to establish minimum safety standards and ensure effective 
82 


79850.057

enforcement by state agencies can be inconvenient for specific industries at times, 

members of Congress would serve their constituents best by allowing agencies like the 

EPA to do their job and providing them the resources they need to do it effectively. 
83 

Mr. SHIMKUS. And now I would like to recognize our last member 

of the panel, not least, from the National League of Cities, the 

Honorable Michael Sesma, who is a council vice president, city of 

Gaithersburg, Maryland, and has some friends in Edwardsville, Illinois, which is the county seat of my home county. So I may be 

generous a few seconds with time. 

So welcome. 

STATEMENT OF THE HONORABLE MICHAEL A. SESMA 

Mr. SESMA. I will probably need it. Thank you. 

Good morning, Chairman Shimkus—— 

Mr. SHIMKUS. Extend your mike. 

Mr. SESMA [continuing]. Ranking Member Tonko, and members 

of the subcommittee. I am Michael Sesma, council member of the 

city of Gaithersburg, Maryland. 

Mr. SHIMKUS. Will you either pull it closer or make sure the light 

is on? 

Mr. SESMA. All right. The light is on. It is probably going to 

count against my time. 

Mr. SHIMKUS. It is starting to come now. 

Mr. SESMA. All right. Thank you. 

Mr. SHIMKUS. Just get a little bit closer, and I think we will all 

be happy. 

Mr. SESMA. OK. 

I appreciate the opportunity to share our perspective. I am here 

today on behalf of the National League of Cities, the oldest and 

largest organization representing cities and towns across America. 

I appreciate the opportunity to share our perspective on the important role local governments play in protecting the environment. 

We have heard a lot about States this morning. States can’t do 

it without the cities being part of it. As implementers of State and 

Federal environmental policies and programs and with authority 

over local land use, zoning, and code development decisions, cities 

and towns are key partners in ensuring that the health, safety, and 

welfare of the public is protected. 

Many local governments, including my city of Gaithersburg, are 

at the forefront of sustainability and planning, taking action to 

make our communities vibrant places to live, work, and play. 

America’s cities and towns serve as the first line of defense and innovation for environmental protection. I would like to highlight 

some of the approaches that Gaithersburg has used as an example 

of the role cities and towns, urban and rural, large and small, have 

in protecting the environment. 

While not currently required by the Federal or State government, 

the city of Gaithersburg has taken steps to minimize storm-water 

runoff and encourage residents to be active participants in protecting our watershed and public and private property. We have a 

popular RainScapes program that rebates rain barrel use and conservation landscaping to keep our neighborhoods green and to prevent rainwater from running into the storm drains. 

We have constructed ‘‘green streets’’ to achieve the same thing. 

We have been a Tree City USA since 1990, but Gaithersburg is becoming more urban. As you know, urban forests contribute significantly to energy conservation and overall environmental quality. 

84 

So our forest conservation plan allows us to protect our urban 

tree canopy even as we promote development throughout the city. 

We try to replace every lost mature tree with a new tree. 

In 2007, the city adopted a resolution requiring LEED Silver certification for all future municipal buildings. We were one of the 

first cities in the country to enact mandatory green building requirements for both residential and commercial development. Happily, there was no resistance from the development community, and 

our approach has been good for business. Green buildings are going 

up throughout the city. 

And Gaithersburg has the first youth center in the United States 

and the fourth building in Maryland to be certified LEED Platinum 

by the USGBC. 

Cities are committed to working in partnership with the EPA to 

develop strategies and enact policies that enhance our environmental resources and create viable communities for future generations. These efforts are aided by several positive steps that EPA 

has taken in recent years that strengthen the Federal, State, and 

local partnership. I would like to touch on three of these. 

The first is the federalism consultation process. We thank EPA 

for lowering the threshold for triggering the State and local consultation process from a threshold of $100 million to $25 million. 

Since lowering the threshold for triggering the federalism consultation process, State and local governments have been consulted on 

a more regular basis on issues of mutual importance. And we firmly believe that early consultation will lead to better results and 

strengthen the partnership between Federal, State, and local government in achieving the environmental goals of the EPA. 

In regulatory review and reform, an Executive order calling on 

Federal agencies to identify opportunities for reducing administrative and regulatory burdens on local government has saved cities 

money. As cities and towns continue to recover from the economic 

downturn, every dollar counts, and this flexibility is a welcome 

means of lessening the financial burden on local governments. 

Finally, EPA’s integrated municipal storm-water and wastewater 

planning approach planning approach framework and the recent 

memorandum on assessing financial capability from Municipal 

Green Water Act requirements serve as acknowledgment that local 

governments face difficult financial conditions that impact their 

ability to meet the Clean Water Act obligations. By allowing an integrated planning approach, local governments, not the agency, can 

decide how they will meet the CWA requirements. This flexibility 

allows for better compliance, better planning, and more efficient 

spending. 

So cities and towns across the country continue to have concerns 

about the affordability of meeting CWA requirements. In Maryland, the implementation of storm-water management programs 

has a direct impact on the quality of water in streams and rivers 

that flow into the Chesapeake Bay. And a healthy, clean Chesapeake Bay is vital to the economic health of the mid-Atlantic 

States. While the CWA mandates may be necessary to maintain 

and improve water quality, they come with high costs to local governments and taxpayers. 

85 

For example, under our next permit cycle, Gaithersburg must 

retrofit 20 percent of its impervious acreage at a cost that is estimated to be about $127,000 per acre. And the projected cost for 

Gaithersburg to do this over 576 acres is $73 million. Our operating budget for fiscal year 2013 was $46 million. Montgomery 

County in Maryland has a bigger problem. About 20 percent of 

their budget must be used—or a proportion of their budget of $4.6 

billion will be spent to retrofit their impervious services before 

2020. 

So in response to local government concerns about affordability 

and the fiscal impact of regulatory compliance, EPA issued a 

memorandum on the fiscal burdens of compliance. Local governments will continue to dialogue with EPA on affordability. And we 

commend EPA for both the integrated planning effort and local 

government affordability dialogue that will serve to strengthen the 

intergovernmental partnership. 

However, this integrated planning framework can still be improved, and we urge EPA to include drinking-water regulations in 

the planning framework. 

So I will just cut to the quick chase and the major reason that 

we are here. And one is to call on Congress some support existing 

and new financing mechanisms for funding water infrastructure 

projects. Cities have been forced to contend with significant decreases in intergovernmental revenue, including Federal, State, 

and county aid, adding to the fiscal problem. 

Elected officials are making difficult decisions and working hard 

to find innovative solutions to re-energize their communities. And 

without the resources to do that, it will be difficult to implement 

the objectives of the Safe Drinking Water and the Clean Drinking 

Water Act. So there is a need for new financing—for financing 

mechanisms. 

As the administration and Congress seek to identify savings and 

new revenue to reduce the deficit, the Federal income tax exemption on interest paid on State and municipal bonds is under threat. 

Tax-exempt municipal bonds are—— 

Mr. SHIMKUS. Mr. Sesma, I have been overly generous—— 

Mr. SESMA. Thank you. 

Mr. SHIMKUS [continuing]. With a minute more than the 

other—— 

Mr. SESMA. A minute more. Thank you. 

Mr. SHIMKUS. No, no, no. I—— 

Mr. SESMA. Thank you. I end my remarks. 

Mr. SHIMKUS. Thank you very much. 

[The prepared statement of Mr. Sesma follows:] 

86 


79850.058

Statement of 

The Honorable Michael A. Sesma 

Council Member, Gaithersburg, Maryland 

On behalf of the National League of Cities 

Before the House Energy and Commerce Committee, Subcommittee on 

Environment and Economy 

'The Role of States in Protecting the Environment Under Current Law" 

February 15, 2013 

Good morning, Chairman Shimkus, Ranking Member Tonko and Members ofthe Subcommittee. 

I am Michael A. Sesma, Council Member, Gaithersburg, Maryland. I am here today on behalf of 

the National League of Cities (NLC), the oldest and largest organization representing cities and 

towns across America. I appreciate the opportunity to share our perspective on the important role 

local governments play in protecting the environment. Local governments and the U.S. 

Environmental Protection Agency (EPA) have a long and productive history of working together 

to improve the environmental quality of life in our communities. As implementers of state and 

federal environmental policies and programs and with authority over local land use, zoning, and 

code development decisions, cities and towns are a key partner in ensuring that the health, safety 

and welfare of the public is protected. 

Environmental degradation respects no political boundaries; therefore a coordinated national 

environmental quality policy is vital to our nation. NLC believes a national environmental 

quality policy must improve the quality of the total environment while protecting the 
87 


79850.059

environment from further harm. Moreover, such national policy must assess both current and 

long term environmental impacts, ensuring that the needs of the present are met without 

compromising the ability of future generations to meet their own needs. 

While a national environmental policy is important in ensuring that decisions made by one city 

do not have a negative impact on neighboring cities, many local governments, including my city 

of Gaithersburg, are at the forefront of sustainability in planning, taking actions to make our 

communities vibrant places to live, work, learn and play. From ensuring proper zoning and 

density, to enforcing local, state and national regulation, America's cities and towns serve as the 

first line of defense and innovation for environmental protection. I'd like to highlight some of the 

approaches that Gaithersburg has taken as an example of the role cities and towns-urban and 

rural, large and small-have in protecting our environment. 

While not currently required by the federal or our state government, the City of Gaithersburg has 

taken several steps to minimize stormwater runoff and encourage residents to be active 

participants in protecting our watershed. In 2009, Gaithersburg began offering a Rainscapes 

Rewards program--offering a rain barrel and a conservation landscaping rebate program for city 

residents. Additionally, the city has also pursued stormwater mitigation through the construction 

of green streets, which use a natural approach of curb extensions, porous paving materials and 

native plantings to reduce storm water flow. Our first two green streets were constructed in 2009 

and 20 I 0, and the city will begin construction of three more this spring. These actions reduce the 

amount of stormwater entering local streams, control flooding, decrease water usage, increase 

groundwater supply, and reduce chemical and nutrient pollutants entering waterways. 

2 
88 


79850.060

Additionally, Gaithersburg is becoming more urban, and we are mindful that residential and 

commercial development could result in the loss of healthy trees, Therefore, we have taken steps 

to maintain and protect our urban tree canopy, which contributes significantly to energy 

conservation and overall environmental protection. As mandated by the State of Maryland, we 

require forest conservation at new and redeveloped properties. The city also operates a fee-inlieu program for those developments where on-site retention of forested areas is not possible. 

This money is used to fund tree plantings within the public right-of-way and to reforest public 

lands. I am proud to say that Gaithersburg has earned a Tree City USA designation from the 

National Arbor Day Foundation every year since 1990. 

Moreover, in 2007, the city adopted a resolution requiring LEED Silver certification for all 

future municipal buildings. The city has also enacted rigorous green building requirements for 

both residential and commercial development. Gaithersburg's Olde Towne Youth Center 

achieved LEED Platinum certification in 2010, making it the first youth center in the country and 

the fourth building in Maryland at the time to achieve this highest level of certification from the 

u.S. Green Building Council. 

Finally, as part of our submission to become a Sustainable Maryland Certified community, the 

city prepared a three-year Green Team Action Plan. In 2013 we will be tracking our municipal 

carbon footprint, creating a watershed plan and participating in the Maryland Department of 

Housing and Community Development Sustainable Communities program. In 2014 we will 

continue to track our carbon footprint, create a climate action plan, promote the Maryland Green 

3 
89 


79850.061

Registry (of which we are a member), complete a Green Guide to Gaithersburg, and create a 

watershed plan for the second of our three watersheds. 

Importance of Intergovernmental Partnership 

The implementation of impactful and sustainable environmental programs is a core responsibility 

of local government. With every aspect of our environmental health being interrelated, cities are 

committed to working in partnership with EPA and those who live and work in our communities 

to develop strategies and enact policies that enhance our environmental resources and create 

viable communities for future generations. Our efforts to ensure environmental protection are 

aided and enhanced by several positive steps that EPA has taken in recent years toward renewing 

and strengthening the federal-state-Iocal partnership. I would like to touch on three. 

Federalism Consultation 

As you know, the 1995 Unfunded Mandates Reform Act (UMRA) requires federal agencies to 

assess the costs and benefits of a final rule that may result in the expenditure by state, local, and 

tribal governments. in the aggregate, of $1 00 million or more. Under UMRA, this threshold 

amount also triggers the required intergovernmental consultation process between regulatory 

agencies and elected officials. 

In 1999, President Clinton issued Executive Order 13132: Federalism (Executive Order) to 

"further the policies of the Unfunded Mandates Reform Act" and to "insure that the principles of 

federalism established by the Framers guide the executive departments and agencies in the 

4 
90 


79850.062

formulation and implementation of policies." In addition to enumerating the basic principles of 

federalism, the Executive Order directed federal agencies to set up a consultation process "to 

ensure meaningful and timely input by State and local officials in the development of regulatory 

policies that have federalism implications." 

In 2008, EPA revised its Guidance document on Executive Order 13132: Federalism, lowering 

the threshold for triggering the state and local consultation process from $100 million to $25 

million. 

Because the threshold was so high from the Executive Order's effective date (1999) through 

2008, only two EPA regulations met the threshold and triggered the review process. This led to 

many instances where agency regulations imposed unplanned expenditures on local governments 

and diverted scarce resources from other important local activities, without the benefit of our 

consultation. Since lowering the threshold for triggering the federalism consultation process, 

state and local governments have been consulted on a more regular basis on issues of mutual 

importance to the quality of life in our communities and the fiscal impacts of those decisions. 

While cities and towns do not always agree with the substance of rules put forth by EPA, 

particularly the increasing number of unfunded federal mandates imposed on local governments, 

we strongly believe that early consu Itation can lead to better results and can strengthen the 

federal, state, and local government partnership, and we encourage Congress to continue to 

support this process. 

5 
91 


79850.063

Regulatory Review 

Second, earlier this year, EPA published a memorandum, "Safe Drinking Water Act - Consumer 

Confidence Report Delivery Options," which clarified that water suppliers may use electronic 

delivery options for Consumer Confidence Reports (CCRs). As there are approximately 51,651 

community water systems in the country that are currently publishing and distributing the CCRs 

to their consumers, granting local governments electronic delivery options for CCRs will provide 

local water utilities and taxpayers with significant savings in printing and mailing costs. As cities 

and towns continue to recover from the economic downturn, this is a welcome means of 

lessening the financial burden on local governments. 

This Administrative action stemmed from Executive Order 13563: Improving Regulation and 

Regulatory Review (January 2011), which called on federal agencies to identify opportunities for 

reducing administrative and regulatory burdens on local governments, and EPA's Final Plan for 

Periodic Retrospective Review of Existing Regulations (August 2011) that followed. 

Integrated Planning and Affordability Dialogue 

Finally, EPA's Integrated Municipal Stormwater and Wastewater Planning Approach 

Framework (Framework, June 2012) and recent memorandum on Assessing Financial Capability 

for Municipal Clean Water Act Requirements (January 2013) serve as Agency acknowledgement 

that many local governments face difficult financial conditions that impact their ability to meet 

Clean Water Act (CW A) obligations. 

6 
92 


79850.064

The integrated planning framework is aimed at helping state and local governments identifY 

opportunities to achieve clean water by controlling and managing releases of wastewater and 

stormwater runoff in an efficient and cost effective manner. By allowing for an integrated 

planning approach, local governments can decide how they will meet their CW A requirements 

through the sequencing, scheduling and prioritization of projects. 

In developing the Framework, EPA sought stakeholder input, including from NLC. In a February 

2012 letter to EPA, NLC called on the agency to consider affordability issues for communities, 

to grant local governments flexibility to evaluate and make improvements to the plan, and to rely 

on the permit process, rather than through consent decrees, for the implementation of long-term 

integrated plans. NLC emphasized these key concerns to Congress as part of testimony before 

the House Committee on Transportation and Infrastructure, Subcommittee on Water Resources 

and Environment in December 2011 and July 2012. 

Cities and towns across the country continue to have concerns about the affordability of meeting 

CW A requirements. In Gaithersburg, the implementation of stormwater management programs 

has a direct impact on the quality of water in the streams and rivers that flow into the Chesapeake 

Bay. A healthy, clean Chesapeake Bay is vital to the economic health of the Mid-Atlantic States. 

While the federal mandates of the CW A may be necessary to maintain and improve water 

quality, they do not come without a high cost to local governments and taxpayers. 

For example, there are approximately 24 miles of streams in Gaithersburg, many of which are in 

need of restoration in order to protect our watershed. We are in the process of soliciting for and 

7 
93 


79850.065

conducting assessments for three of our major watersheds, as required by our Phase II MS4 

permit. The first of these studies is expected to cost taxpayers $99,000. The U.S. Army Corps of 

Engineers has identified a 10,000-foot portion of the city's Muddy Branch watershed as in need 

of restoration-at a cost of $2.5 million to taxpayers. Moreover, the city recently reconstructed 

three storm water management facilities at a cost of $860,000. Our taxpayers support the efforts 

to protect the environment but also ask, "Is this a cost effective and efficient use of taxpayer 

money?" 

Additionally, under our next permit cycle, Gaithersburg will have to retrofit 20 percent, or 576 

acres, of our current 2,882 acres of impervious surface, much of which is owned by the private 

sector. Using neighboring Montgomery County's treatment estimate of approximately $127,000 

per acre, for Gaithersburg to treat its 576 acres, the projected cost would be approximately $73 

million. Gaithersburg's fiscal year 2013 total operating budget is $46 million. The impact and 

cost to Montgomery County will be even greater; by 2020, Montgomery County estimates that 

7,722 acres of impervious surface will have to be retrofitted at a cost to taxpayers of $987 

million. This amounts to more than 20 percent of the county's annual operating budget of $4.56 

billion for fiscal year 2013. Again, while these are important projects, the cost to local 

governments and taxpayers is high. 

In addition to implementation costs and effort, staffing costs to ensure compliance with our MS4 

permit will require additional funding within the city's budget. We will need to conduct routine 

surveys and monitor commercial and industrial areas for discovery and elimination of hotspots. 

We will need to establish a more exhaustive mechanism for annual reporting related to our 

8 
94 


79850.066

permit. And we will need to conduct more systematic watershed assessments and combine them 

with a report of restoration goals prior to the permit term ending. The city will also need to meet 

new Total Maximum Daily Load and Waste Load Allocations approved by EPA for our water 

hodies. 

Because of the continuing concerns of local governments around the issue of affordability and 

the fiscal impact that regulatory compliance has on communities, EPA issued a memorandum to 

the regions, Assessing Financial Capability for Municipal Clean Water Act Requirements, 

clarifying how the financial capability of a community will be considered when developing 

schedules for municipal projects necessary to meet CW A obligations. EPA also began an 

affordability dialogue with local elected officials and local government organizations on this 

topic. We commend EPA for both the integrated planning effort and local government 

affordability dialogue that will serve to strengthen the intergovernmental partnership. 

Despite these good efforts, however, cities have a concern with the integrated planning 

framework. While the local government affordability discussions with EPA will include a focus 

on assessing a community's financial capability including their obligations under the Safe 

Drinking Water Act (SDWA), the integrated planning framework does not apply to drinking 

water regulations. As drinking water utilities are increasingly being called on to monitor and 

remove emerging contaminants, such as chromium and pharmaceutical products, and with the 

forthcoming proposed regulatory revisions to the Lead and Copper Rule, we have called on EPA 

to consider drinking water within the integrated planning approach. Moreover, drinking water 

and wastewater are viewed as one system indistinguishable from each other by our citizens and 

9 
95 


79850.067

customers. Utilities, especially those with responsibility for wastewater, storrnwater and drinking 

water, often take a holistic approach to water management, and would benefit from a national 

policy framework that allows for a similar integrated and coordinated approach. 

Fiscal Impact of Aging Infrastructure 

As you know, local governments construct, operate, and maintain the vast amount-95 to 98 

percent--of the country's water infrastructure networks, which are essential for econom ic 

development and quality of life in our communities, and the needs in our communities continue 

to grow. Cities face a backlog of projects and, especially as cities continue to recover from the 

economic downturn, are finding challenges in funding much needed water infrastructure 

improvements, as well as other priorities. Meanwhile, federal mandates, along with aging 

infrastructure, are straining local budgets and federal options for grants and loans are dwindling. 

We, therefore, call on you to support existing and new financing mechanisms for funding water 

infrastructure projects. 

lrifrastructure Needs 

The need for infrastructure investment-and the jobs that come with it-is acute. The American 

Society of Civil Engineers estimates that the nation should spend $2.2 trillion over the next five 

years on infrastructure projects. Specifically, EPA's most recent Drinking Water Infrastructure 

Needs Survey and Assessment estimates the cost of drinking water infrastructure upgrades over a 

20 year period to be $334.8 billion. Likewise, the most recent EPA Clean Watersheds Needs 

Survey indicates that the 20 year investment needed to upgrade our nation's total wastewater and 

10 
96 


79850.068

storm water management infrastructure to meet the water quality goals set in the CW A to be 

$298.1 billion. In our estimation. these investment levels are actually an underestimate given the 

advancing age of our infrastructure, the burden of unfunded federal regulatory mandates, and 

factors not yet known as a result of our changing climate. 

The lack of quality water infrastructure threatens local and regional economies, the environment, 

and public health and safety. Like other communities, much of Gaithersburg's water 

infrastructure is beyond its expected design life and is in need of substantial funding to address 

our existing system needs. City leaders remain committed to meeting the growing water 

infrastructure needs in our communities. We call upon the federal government to be a full partner 

in this important endeavor. 

City Fiscal Conditions 

According to NLC's 2012 City Fiscal Conditions reportl

, general city revenues are continuing to 

fall, with a projected -3.9 percent decrease over 20 II. This is the sixth straight year of declines in 

revenue with probable further declines in 2013 due to stagnant housing markets, high 

unemployment, and looming federal budget cuts. Cities are responding to these declines by 

cutting personnel (48 percent), increasing service fees (43 percent), delaying infrastructure 

projects (33 percent}-in addition to deferring facility maintenance and equipment replacement, 

and making cuts in services such as public works, library, parks and recreation programs (25 

percent). 

I Hoene, Christopher W. and Michael A. Pagano, City Fiscal Conditions in 2012, National League of 

Cities, September 2012. (Available at http://v.·ww.nle.org/find-city-solutions/center-for-rcsearch-andinnovationlfinance/city-fiscal-conditions-in-20 12) 

II 
97 


79850.069

Cities also have been forced to contend with significant decreases in intergovernmental revenue, 

including federal, state, and county aid, adding to the fiscal pressures. In addition to on-going 

deficit reduction efforts at the federal level, which has led to spending cuts in federal programs 

for local communities, according to NLC's report, since 2010, cities report state cuts in shared 

revenues (45 percent), general aid (42 percent), and reductions in reimbursements and other 

transfers (30 percent). As states make these cuts to balance their budgets, it puts greater 

budgetary pressure on local governments that must balance their budgets as well. 

There can be no doubt that in Gaithersburg and in cities around the country, city officials are 

making difficult decisions and are working hard to find innovative solutions to reenergize our 

communities. But, without more resources and more cooperation from the federal government, 

the outlook will continue to be challenging. Moreover, at a time when financial resources are 

increasingly limited, the federal government continues to impose costly federal regulatory 

requirements to carry out the objectives of the SDWA and CWA without regard for the efficacy 

of the regulation or a prioritization scheme. 

Financing Mechanisms 

As the Administration and Congress look to identify savings and new revenue to reduce the 

deficit, the federal income tax exemption provided to interest paid on state and municipal bonds 

(debt) is under threat. These bonds are the primary financing mechanism for state and local 

infrastructure projects, with three-quarters of the infrastructure projects in the U.S. built by state 

and local governments using municipal bonds as the primary tool, and with over $3.7 trillion in 

outstanding tax-exempt bonds, issued by 30,000 separate government units. According to the 

12 
98 


79850.070

National Association of Clean Water Agencies, in the first six months of 2012, tax-exempt 

municipal bonds financed more than $23 billion worth of water and wastewater infrastructure 

projects. 

Local governments save an average of 25 to 30 percent on interest costs with tax-exempt 

municipal bonds as compared to taxable bonds. This is true because investors are willing to 

accept lower interest on tax-exempt bonds in conjunction with the tax benefit. If the federal 

income tax exemption is eliminated or limited, states and local governments will pay more to 

finance projects, leading to less infrastructure investment, fewer jobs, and greater burdens on 

citizens who will have to pay higher taxes and fees. NLC opposes any attempt to eliminate or 

limit the traditional tax exemption for municipal bonds whether as a part of a deficit reduction 

plan, a push for comprehensive tax reform, or as an offset for new spending. 

While we recognize that the federal government has many funding challenges to meet, we urge 

you to prioritize funding for the Drinking Water and Clean Water State Revolving Loan Fund 

(SRF) programs. The SRF programs are integral tools used by our communities for providing 

clean, drinkable, and swimmable water to the American people. In 2010, local governments 

spent $111 billion2 on water and wastewater investments, while the SRF programs provided $3.5 

billion, primarily in the form of loans from state agencies to local governments. Federal 

investment in our nation's infrastructure is critical if the nation's cities, counties and states are to 

improve aging infrastructure, meet federal regulatory requirements, create and retain jobs, and 

foster a climate of economic growth in our communities. 

22010 Annual Surveys of State and Local Government Finances, U. S. Census Bureau, October 2012. 

(Available at: http://www.census.gov/govs/estimate/) 

13 
99 


79850.071

Accordingly, local governments need a reliable, long-term source of substantial capital for 

municipal water infrastructure systems to help close the gap between current expenditures and 

anticipated needs to enhance and maintain critical water infrastructure in our communities. NLC 

supports water infrastructure funding through the SRF programs and other alternative 

mechanisms of financing water infrastructure improvements and investments, such as, for 

example, mechanisms that lower the cost of borrowing that will help leverage local funding, 

offer direct loans and loan guarantees from the federal government to cities, or remove the 

federal volume cap on tax-exempt bonds for water and wastewater infrastructure projects. 

Conclusion 

The United States marked the 20th century with breakthroughs and investment in water 

infrastructure that helped lift our nation to international prominence for the past 100 years. We 

ask you to lead and serve the country by addressing the underlying issue of aging infrastructure 

and unmet infrastructure needs. This effort will strengthen the intergovernmental partnership by 

enabling our cities and towns, our states, and country to meet the challenges and opportunities of 

leading the world into the next century. 

Local governments remain committed to meeting the water infrastructure needs and 

environmental protection standards in our communities now and in the future. We hope the 

federal government remains committed to being a full partner in this important endeavor. As the 

nation's cities continue to endeavor to improve aging infrastructure, meet federal regulatory 

14 
100 


79850.072

requirements, create and retain jobs, and foster a climate of economic growth in our 

communities, a partnership with the federal government is essential. 

Thank you for the opportunity to speak on behalf of America's cities and towns. I look forward 

to your questions. 

15 
101 

Mr. SHIMKUS. Now I would like to recognize myself for 5 minutes 

for questions. The first question to goes to Mr. Fitch. 

Please explain the Risk-Based Data Management System. And 

can you give me a specific example of how this tool aids in the regulatory effort? 

Mr. FITCH. The Risk-Based Data Management System is a kind 

of a common platform that is used by many of the oil- and gas-producing States. We enter all of our data into it, all the information 

on individual wells, the drilling, construction, production history. 

And it can be linked to other records associated with the well. It 

helps us to manage our internal data, and it also is a good portal 

for public or industry, any interested party, to access that data. 

Mr. SHIMKUS. Thank you. 

And, Mr. Lepore, how did the Risk-Data Management System 

help you manage the delicate balance between water and energy? 

Mr. LEPORE.Mr. Chairman, as Mr. Fitch alluded to, the RBDMS 

allows us to track a vast amount of information, tie that information to specific wells, search that information, keep that information publicly available. So I guess all of those tools combined can 

be used by someone looking to that energy-water balance as they 

want to use that information. 

Mr. SHIMKUS. And is water data shared across State lines? 

Mr. LEPORE. It certainly can be. One of the slides that I didn’t 

have time to show you is we have an environmental database now 

that went live in September of 2012. Go to that database, click on 

a well, you can find out everything there is to know about that particular groundwater well. Again, fully publicly accessible, so it 

could be shared across State lines. 

Mr. SHIMKUS. Ms. Pillsbury, do you agree? Do you agree with the 

comments of Mr. Lepore? 

Ms. PILLSBURY. That we are able to get information from other 

States about water and water quality? Yes, I agree with that. 

Mr. SHIMKUS. Great. Thank you. 

Mr. Steers, do you believe that with the Federal standards set 

by Congress in statute rather, than set by the EPA, that you could 

establish, implement, and enforce a permit program that meets the 

requisite level of protection established by the Federal Government? 

Mr. STEERS. Mr. Chairman, yes, I do believe the States are capable. We have a significant history over the last 20 to 30 years of 

permitting and implementing standards and using the flexibilities 

and understanding local conditions on how we apply permitting 

program across the Nation. 

Mr. SHIMKUS. And, Ms. Marks, if EPA has authority to take over 

control of a State permit program when the permit program isn’t 

meeting a minimum Federal standard, would you consider that 

backstop authority for the EPA? 

Ms. MARKS. Yes. I do think that is a backstop authority. And it 

is rarely exercised. Fortunately, it hasn’t had to be. 

Mr. SHIMKUS. And going back to Ms. Pillsbury, your testimony 

talks about other partnerships for training and technical assistance. Could you please discuss these and what are you trying to 

obtain from them? And how do you think they will help your members with the mission? 

102 

Ms. PILLSBURY. Sure. On both the national organization and 

State level, two of the big partners are the National World Water 

Association and the Community Assistance Program. And they basically put boots on the ground to help water systems obtain financing, meet compliance, those kinds of things. 

In addition to that, up until pretty recently, there were both finance centers and technical centers that EPA sponsored. And for 

us in New Hampshire, arsenic was a huge issue, and that technical 

center at University of New Hampshire was critical in figuring out 

what was the least-cost way to these small, struggling systems to 

meet arsenic compliance. 

Mr. SHIMKUS. And I am going to wrap up. I appreciate the testimony. I think it is a very good panel. 

I think it is safe to say that the States, you know, are doing most 

of the work. I am a former infantryman, so I would call you the 

boots on the ground and the infantry of protecting our citizens and 

their air quality and their environment and the like. And I want 

to thank you for your service. 

And I yield to the ranking member, Mr. Tonko, for 5 minutes. 

Mr. TONKO. Thank you, Mr. Chair. 

And I heard a number of concerns about financing, about funding 

streams from the Federal level. Over 40 percent of EPA’s budget 

is typically passed through the agency to the States to make their 

work possible. And, according to EPA, 75 percent of that volume 

of its State cleanup grants and 80 percent of its State prevention 

grants support the salaries of State staff, so that that could mean 

huge cuts and losses at your important State agency level. 

Ms. Pillsbury, you represent the State officials trying to provide 

all of our constituents with safe drinking water. You held up a 

great visual. According to EPA, if the sequester goes into effect, 

more than 100 water quality protection and restoration projects 

would be eliminated. What does that mean from your perspective 

in trying to provide safe drinking water? 

Ms. PILLSBURY. Well, the Safe Drinking Water Act is really 

structured to be a multibarrier approach to safe drinking water. So, 

you know, you start with a source, the treatment, the distribution 

system, and then monitoring and getting information out there. 

That source piece of it, making sure that the water is clean to 

begin with, is really critical. Trying to treat it at the public water 

systems is very difficult, sometimes impossible, oftentimes very expensive. 

So we like the Clean Water Act. And there is actually work in 

progress between Groundwater Protection Council, as do our association, the State Drinking Water Administrators, and the Association of Clean Water Administrators to look at what tools can be 

brought to bear under the Clean Water Act to protect the sources 

being used by public drinking waters. 

Mr. TONKO. And, Ms. Marks, you represent the State officials 

who work every day to address cleanup of contaminated sites. If 

the sequester, again, goes forward, we are told that nearly 300 contaminated, leaking underground storage tanks would not be 

cleaned up. Nearly 600 contaminated properties would not get 

cleaned up under the voluntary cleanup program. 

103 

What does that mean to the work that is assigned you and your 

colleagues? 

Ms. MARKS. Well, the Federal dollars that come in to do cleanups 

are absolutely vital, and it would be devastating to our programs 

to lose that assistance. Certainly, the States provide a certain 

amount of that funding, but the Federal funding is actually integral to getting those sites cleaned up. 

Mr. TONKO. And, Ms. Harrison, as a State legislator, you have 

to deal with State budgetary issues every year. I served for 25 

years in State government in New York; I know the struggles 

States are facing. 

Are the States prepared to step in and make up for any loss of 

funding if that should be the result here from Washington? 

Ms. HARRISON. The short answer is, no, sir. I think we have 

made significant cuts to our department budgets already, and we 

have actually replaced a lot of the State funding with Federal funding and moved positions into federally funded positions. So I think 

any cuts would be devastating to our ability to protect the public 

health of our citizens. 

Mr. TONKO. And, Mayor Sesma, you represent cities across the 

country. Can our cities absorb these costs if Federal funding is cut 

significantly? And what plans would perhaps States make to respond to the shortfall? 

Mr. SESMA. Well, the intergovernmental revenue from State and 

Federal governments have caused other stresses on local budgets. 

That either means an increase in local taxes or an increase in fees 

or new fees, or projects don’t get done or they don’t even get 

planned. 

So one of the big asks of the NLC is to continue to support the 

financing mechanisms that exist, and ask the Federal Government, 

Congress, to consider new or additional creative mechanisms that 

allow us to begin to deal with this infrastructure—not just new infrastructure, but maintaining the existing infrastructure that is becoming obsolete and inefficient. 

Mr. TONKO. Thank you. 

It becomes clear to me that this panel is working hard every day 

to implement our environmental laws and doing a commendable 

job, but sequestration is an imminent threat. If these important 

programs survive sequestration, the budget here, the Ryan budget, 

threatens to cut Federal funding even more drastically. 

One of today’s witnesses has suggested that the members of this 

subcommittee write to the Appropriations Committee and urge 

them to ensure adequate funding for these programs. I think that 

is a great idea. And I would like to pledge to work with our outstanding chair to convey that message to the appropriators. I hope 

that we can work together and make sure that we don’t sacrifice 

public health and the environment with ill-considered budget cuts. 

So thank you for your advocacy and your advice. 

Mr. SHIMKUS. The gentleman yields back his time. 

The chair now recognizes the vice chairman of the subcommittee, 

Mr. Gingrey, for 5 minutes. 

Mr. GINGREY. Mr. Chairman, thank you for the recognition. And 

since we are somewhat rushed for time—I think votes are coming 

104 

up pretty soon—let me get right to my questions. And I would like 

to begin with Ms. Marks. 

Ms. Marks, how much staffing and other resources would the 

EPA need to amass to replicate the technical expertise, the enforcement, and administrative efforts provided by the States for environmental and public health protection? 

Ms. MARKS. Since each State runs their own programs, it would 

be difficult to estimate that. But I can tell you from Arkansas, 

which is a small State, we employ anywhere from 375 to 400 people. We have expenditures of over $50 million a year. 

And even though we do operate State programs in addition to the 

Federal programs, if EPA came in they would have to pick up those 

State programs, such as landfills. You can’t leave landfills unregulated. So they would have to pick up beyond what they are currently overseeing. 

Mr. GINGREY. So, basically, lots of boots on the ground and lots 

of expertise. 

Ms. MARKS. Yes, sir, absolutely. It would be a tremendous, massive effort and change in the Federal organization. 

Mr. GINGREY. Thank you. Thank you so much. 

And now I would like to move to a couple of questions for Mr. 

Steers. 

Some have argued that States use variances as a, quote, ‘‘copout’’ 

for enforcing strict environmental standards in their States. Do you 

agree with that, Mr. Steers? 

Mr. STEERS. No, I do not. I think that variances are a necessary—— 

Mr. GINGREY. And if you don’t mind, also just explain what they 

are, how that works, and—— 

Mr. STEERS. Sure. Variances are a regulatory process that States 

use in order to adapt local conditions and site-specific risk that 

may be present that the regulations may not account for, and the 

ability to allow facilities to operate at a different standard based 

on those local conditions. 

Variances are not a copout, and they are taken seriously by the 

States, inasmuch as they are needed in order to look at the differences in the way that regulation is applied across the country. 

For example, groundwater protection standards and how we regulate groundwater in the eastern part of the United States around 

the landfill where there may be shallow aquifers is not necessarily 

the same as you would have out west or in the desert where 

groundwater may be several hundred feet below the surface. And 

so you need to be able to take into account the local geologic conditions when you are applying a one-size-fits-all national standard. 

Mr. GINGREY. So that basically is what you are talking about 

when you say ‘‘variances.’’ 

Mr. STEERS. Variances, yes. 

Mr. GINGREY. Thank you very much. 

In my remaining time, I would like to conclude with one question 

for Ms. Pillsbury. Your testimony talks about tailoring of Federal 

regulations. This doesn’t mean compromising water quality for consumers in that State, does it? 

105 

Ms. PILLSBURY. No, it certainly does not. The ultimate compliance with whatever the regulation is is the compliance that we 

achieve. 

There is in implementing pretty much any national regulation 

some discretion on the part of States about how best to do that 

given local circumstances. So that is really what I meant by saying 

‘‘tailoring,’’ to make it so that it is as practical to implement as possible. 

Mr. GINGREY. Can you tell me the difference in tailoring and 

variances? Is there a distinct difference there? 

Ms. PILLSBURY. Well, ‘‘variance’’ I think is an actual term that 

is used in the rules and regulations. And so tailoring is more of a 

concept of making a national standard fit within your State and 

how best to implement it, how best to train people, you know, what 

kind of capabilities they are going to need to be able to meet compliance. 

So we don’t really do variances in the drinking water program 

that are allowed by statute, but we do a lot of tailoring to get the 

job done. 

Mr. GINGREY. I understand. Thank you. 

Thank all three of you. 

Mr. Chairman, I would yield back. 

Mr. SHIMKUS. The gentleman yields back his time. 

The chair recognizes the gentleman from California, Mr. 

McNerney, for 5 minutes. 

Mr. MCNERNEY. Well, I thank the chairman. And I want to congratulate you for your elevation and selection. And I look forward 

to working with you on a bipartisan basis to solving some of the 

problems that we are facing in this committee. 

You know, I found the testimony on fracking, Mr. Fitch and Mr. 

Lepore, very informative. So thank you for coming, as well as all 

the witnesses. 

One of the questions that I have that is sort of ongoing about 

fracking is, how important is complete transparency to public acceptance of fracking in local communities? 

Mr. FITCH. I think transparency is a crucial element in the whole 

debate there. There is a lot of misunderstanding, frankly, on the 

part of the public about what fracking is and what the potential 

impacts are. There is a lot of suspicion about the chemicals that 

are used. 

I think it is important for the States to get that information out 

there. In Michigan, we are going all over the State, my staff and 

I, giving presentations to kind of try to get the facts out there and 

hear people’s concerns. 

Mr. MCNERNEY. Mr. Lepore? 

Mr. LEPORE. I would agree with Mr. Fitch’s comments. I think 

transparency is critical. Building trust with our community members is critical. Imparting information is critical is a huge challenge. 

To use one example, I think the term ‘‘fracking’’ has been used 

widely as sort of a substitute for all things oil and gas. And it is 

an ongoing challenge to try to parse those distinctions. 

Mr. MCNERNEY. I mean, it sounds to me like disclosure is something that the Federal Government could impose as a requirement 

106 

on fracking nationwide. I mean, there are differences in terms of 

geologic formations, but disclosure is something that should be universal in all fracking requirements. Would you agree with that? 

Mr. LEPORE. Obviously, Colorado has made the decision that disclosure is important. And it was a long and lengthy conversation 

in Colorado. It started in 2008. There were a lot of concerns by operators with respect to trade secrets, in particular. And I think 

FracFocus is a tremendous tool that is available to all States. I 

think it is in operators’ best interest, to be quite frank, to disclose 

the chemicals they use in frack fluids. 

Mr. MCNERNEY. Good. I agree. 

Like Colorado, California, my home State, is water-bound. I 

mean, we always have to worry about our water sources. And one 

of the concerns I have about fracking is the amount of water that 

is used and what happens to that water after it is used. Is it reclaimed? Is it discarded into local aquifers? 

How do we deal with the water issue in a State like California 

and Colorado? 

Mr. LEPORE. When you talk about how much water it takes to 

frack a well and you talk about several million gallons, it certainly 

seems like a big number. For the State of Colorado, the amount of 

water used totally for fracking is, we have calculated, at less than 

1 percent. The vast, vast majority of our water is used for agriculture. 

That said, again, I would say that reclaiming and recycling and 

reusing that water is becoming an entrepreneur’s dream. There is 

a huge need to do that. And we are approached fairly regularly 

now—we, the Colorado Oil and Gas Conservation Commission— 

from businesses interested in instituting onsite recycling and reclamation and asking us questions about how that would be regulated and so forth. 

So it is an important issue. It is going to continue to be an important part of discussion. And we should encourage as much reuse as 

we can. 

Mr. MCNERNEY. So that is an area for innovation, then. 

Mr. LEPORE. Yes, sir. 

Mr. MCNERNEY. Recycling and recovering. 

What about the water that is just discarded after fracking? I 

mean, is some of the water that is recovered just discarded into the 

aquifer? Or how is that managed? 

Mr. FITCH. That so-called flow-back water has to be handled 

carefully because it does have some—it may have some remnant 

contaminants it in from the hydraulic fracturing additives, and it 

may also may be picking up salts and compounds from that target 

formation. 

In Michigan, it all has to be contained in steel tanks and injected 

into deep injection wells. And most States have similar methods for 

dealing with it. 

Mr. MCNERNEY. And so that is part of the transparency, is how 

that wastewater is finally disposed of. 

Mr. FITCH. That is correct. 

Mr. MCNERNEY. That would have to be part of the transparency. 

Mr. FITCH. Yes. 

Mr. MCNERNEY. Go ahead. 

107 

Mr. LEPORE. I think the disposal question, too, is one which highlights what we are talking about today, which are the differences 

regionally or locally. In Colorado, like Michigan, most of our exploration and production waste, when it is exhausted, is injected into 

deep disposal wells. Other States use different disposal methods 

depending on the geology and topography and so forth, including 

discharge to surface streams. So they have to deal with the waste 

the way that works for them. 

Mr. MCNERNEY. Thank you. 

Mr. Chairman, I yield back. 

Mr. SHIMKUS. The gentleman yields back. 

Just for notification of how we are going to operate, we are going 

to try to finish 5 more, 10 more minutes of questioning. The two 

Texans, Mr. Barton will be next, then Mr. Green. I think Mr. 

Green and I have agreed to be the last guys out of here to hit the 

floor to vote. We would like to come back after the votes for those 

who still want to ask questions. 

And, with that, I recognize Mr. Barton for 5 minutes. 

Mr. BARTON. Thank you, Mr. Chairman. 

I have listened to all the testimony and to the questions that 

have been asked so far and want to go back to the purpose of the 

hearing. ‘‘The Role of the States in Protecting the Environment,’’ 

that is the title of this hearing. 

As I read the Constitution, it starts with three words, ‘‘We, the 

people,’’ which means the power comes from God to the people. The 

people delegate some of that power to the States; States delegate 

some of their power to the Federal Government. And then the 

Tenth Amendment says that all powers that are not explicitly enumerated in the Constitution are reserved for the States or the people, respectively. 

As is pointed out by the witness from Arkansas, who represents 

all the States, as I understand her role, the States are doing most 

of the work in actual environmental protection on a day-to-day 

basis. They use some Federal law, and, of course, there are State 

laws to do it. 

So the issue before the subcommittee and this panel is really, 

who is going to set the policy? Who is best able to set the policy? 

Is it the Federal Government, top-down, or is it the people in the 

States, bottom-up? 

And I listened, and with the exception of the gentlelady from 

North Carolina, I didn’t hear too much complaint about the States 

being able to set the policy. 

Now, I want to ask the gentleman from Colorado, do you think 

the Federal Government is better able to set the policy in your 

State than you and the legislature and the people of Colorado? 

Mr. LEPORE. No, sir, I don’t think so. I think that we have had 

a successful oil and gas commission in the State for 60 years that 

understands the distinctions not only of Colorado versus other 

States but in our different oil- and gas-producing basins. We have 

coal-bed methane, we have Niobrara shale, we have a variety of 

different geologies. We have a 60-year history of rules that have 

evolved over time as our understanding and as technology have 

evolved. So I think the Oil and Gas Commission is perfectly capable of setting policy. 

108 

I think there is a role for the Federal Government in research 

and other things that are a little bit beyond our reach in terms of 

the ability to finance those kinds of projects. But I think the States 

are doing a fine job. 

Mr. BARTON. As I understand the process in Colorado, these 

State regulations that have just been promulgated are the result 

of a process. There was a lot of stakeholder interaction, a lot of involvement with the people and the legislature and the industries, 

and it kind of evolved. And, finally, either there was a regulation 

issued by your agency or a law passed by the State of Colorado 

that you are implementing. Is that correct? 

Mr. LEPORE. That is correct, sir. What we adopted are rules of 

the agency that the commission itself adopted pursuant to our statutory authority. The stakeholder process for the setback rules, in 

particular, was a year long. About 11 separate stakeholder meetings over a period of 7 months, and then we moved into more formal rulemaking. 

We had representatives from industry, of course, from environmental groups, from groups like homebuilders, agricultural interests—very, very diverse. So everybody had an opportunity to be 

heard. 

Mr. BARTON. So not everybody is totally happy, but everybody 

had input. And you have a set of regulations now that seems to be 

working and seems to be successful. Is that a fair statement? 

Mr. LEPORE. I think that is a fair statement. I might add that 

I don’t think anybody was totally happy. But, yes. 

Mr. BARTON. Now, the gentleman next to you, Mr. Fitch, represents the Interstate Oil and Gas Compact Commission, which is 

a voluntary association of State regulators and State governments. 

Is that not correct? 

Mr. FITCH. That is correct, sir. 

Mr. BARTON. And you have provided technical information to any 

State who wishes on the various technical aspects of hydraulic fracturing. And in doing that, you have been able to use some research 

from various universities, like mine, Texas A&M, that could give 

States a technical basis on which to base their regulations. Is that 

not correct? 

Mr. FITCH. That is correct. That is one of the great benefits of 

IOGCC, that ability to share information and coordinate between 

the States. 

Mr. BARTON. Now, is anybody complaining that that process is 

flawed or broken? 

Mr. FITCH. No, sir. It has been very effective. 

Mr. BARTON. Mr. Chairman, I am going to yield back. But it 

would appear to me that the current law gives the States great 

flexibility, great opportunity. They can get research money and 

technical assistance from a number of sources, including the Federal EPA. But the basic policy decisions on these issues appear to 

me to be best made at the State. And the State seems to be using 

those authorities, if Colorado is any example, in a very fair and effective process. 

And, with that, I yield back. 

Mr. SHIMKUS. The gentleman yields back the time. 

109 

The chair recognizes the gentleman from Texas, Mr. Green, for 

5 minutes, the former ranking member of this committee. Noted. 

Mr. GREEN. When am I going to get my picture put up, Mr. 

Chairman? 

Thank you, Mr. Chairman. I appreciate the panel and the questions. 

We conveniently hear that uniform Federal standards are necessary whenever Federal legislators want to override State actions. 

However, isn’t it accurate to describe most Federal environmental 

laws as creating a broad, overarching Federal framework, while 

delegating to the States the responsibility of creating specific regulations, regulations to reflect the realities of circumstances that differ in each State that may require different approaches? 

And if you can’t tell, I am from Texas also and served 20 years 

in the legislature. And, of course, we always have complaints about 

EPA, but we also know that our Texas Environmental Quality 

Commission and EPA work out the relationship that they have so 

that permits are issued, except now in carbon. But is that generally 

the State experience? 

Mr. FITCH. I would say so. A lot of the States, including Michigan, had environmental regulations on the books before some of the 

major Federal legislation. So it is not like we have been lagging behind. But I think some of the Federal legislation did establish kind 

of a threshold or a standard that applies across the States, so it 

does encourage some consistency. 

Mr. GREEN. But in every case I can think of, it is a partnership, 

though, between EPA and the local State regulator in actually 

issuing permits and enforcing it. 

Mr. FITCH. Yes, it is. 

Mr. GREEN. OK. 

Mr. Fitch, much has been discussed regarding the States’ role in 

regulating oil and gas, natural gas development, production, and 

the process of hydrofracking. In some cases, hydrofracking is taking place in States that aren’t traditionally viewed oil- and gas-producing States. 

And I will give you an example. We have fracked in Texas for, 

I guess, 30 years. Of course, the success now is because, you know, 

first Barnett Shale, Eagle Ford, and even in west Texas now reopening the Permian Basin. And, for example, Pennsylvania has 

actually done some things locally that Texas actually followed 

Pennsylvania’s lead on, one in the release of the—at least a lot of 

the information that is in the fluid. 

Is there a program available to States to review their State regulatory programs and assess what is currently on the books between 

the interstate compact? 

Mr. FITCH. Yes. The IOGCC does perform that function. And the 

Groundwater Protection Council has a peer-review program for the 

Underground Injection Program also that—you know, other States 

come in and compare against standards to assure some consistency. 

Mr. GREEN. Do you know—which is STRONGER? How many 

State reviews have there been done? 

Mr. FITCH. By STRONGER? We have done about six or seven 

just on hydraulic fracturing. I think the States with probably about 

110 

90 percent—accounting for 90 percent of the production have undergone an overall State review. 

Mr. GREEN. Is there a separate review available to States for hydraulic fracking, or fracturing? 

Mr. FITCH. I am sorry? 

Mr. GREEN. Is there a separate review available for States for 

hydraulic fracking? 

Mr. FITCH. STRONGER, by the way, is the State Review of Oil 

and Natural Gas Environmental Regulations—they do have a module for hydraulic fracturing. 

The IOGCC does—I mean, we have kind of an informal system, 

and they also have an inspector certification program that will help 

assure that State inspectors are qualified and capable. 

Mr. GREEN. I have some information that says STRONGER has 

completed specific hydrofracking reviews for Arkansas, Colorado, 

Louisiana, Oklahoma, North Carolina, Pennsylvania, and Ohio. In 

each of these reviews, have they had a critical assessment? And is 

that available to other States who may also be experiencing expansion of hydrofracturing? 

Mr. FITCH. Yes, there is a report made on each of those reviews, 

and it is available on the STRONGER Web site. 

Mr. GREEN. OK. 

Thank you, Mr. Chairman. I will give you back 49 seconds. 

Mr. SHIMKUS. And I will take that 40 and make an announcement that we will recess and return approximately 10 minutes 

after the last vote is called, which should give you time to get a 

little boy’s or girl’s break, maybe a soda or a sandwich. But we will 

reconvene about 10 minutes after the vote. 

[Recess.] 

Mr. SHIMKUS. Let me call the hearing back to order. And there 

are a couple pieces of business I want to make sure I accomplish. 

I ask unanimous consent that all Members be given 5 days for 

opening statements that will be submitted as part of the record. 

Without objection, so ordered. 

And, with that, thank you for coming back. Hopefully, you got a 

chance to take a break. I didn’t get my soda or candy bar, so I am 

a little grouchy. But they are used to that in this committee, so I 

am in good shape. 

So, with that, I would like to—seeing no other Members present, 

Mr. McKinley is recognized for 5 minutes for his round of questions. 

Mr. MCKINLEY. Thank you, Mr. Chairman. I heard earlier it was 

going to be quite a few minutes before, but I will go with it. Thank 

you very much. 

I have questions of Ms. Harrison, if I could, please, if you could 

get your mike on and close. 

Ms. HARRISON. Yes, sir. 

Mr. MCKINLEY. OK. I was one of the sponsors of the bill on the 

fly ash legislation, so I am just curious. Let’s just start with that, 

if you would. Have you read both of the bills? 

Ms. HARRISON. I have read some summaries of them. 

Mr. MCKINLEY. OK. Could you summarize the difference between 

the two bills? 

111 

Ms. HARRISON. I am not sure—between the Senate and the 

House bills? 

Mr. MCKINLEY. No, between the House bills that passed. The 

Senate has never taken one. 

Ms. HARRISON. Oh, I am sorry. OK. No, sir, then I haven’t read 

both of them. And I am not familiar enough to summarize the differences. 

Mr. MCKINLEY. OK. Because you made quite a bit in your written presentation about your knowledge of it. But you are saying 

you have not even read the bill and you don’t know the difference 

between the two. 

Ms. HARRISON. I—— 

Mr. MCKINLEY. Thank you. That is it. 

Do you acknowledge that the—does the EPA have the expertise 

to deal with fly ash? 

Ms. HARRISON. Well, I think my position—— 

Mr. MCKINLEY. It is kind of a yes-or-no. 

Ms. HARRISON. I think they are in a better position than we 

are—— 

Mr. MCKINLEY. OK. 

Ms. HARRISON [continuing]. To deal with fly ash. 

Mr. MCKINLEY. And that is fine. 

Ms. HARRISON. And that was my point. 

Mr. MCKINLEY. So if they have the expertise and they have made 

some determinations about fly ash over the last few years, I am 

just curious, do you disagree with their reports? You are familiar 

they have done two reports on fly ash; are you not? 

Ms. HARRISON. Well, I am familiar that they have done the reports. I am not sure I am intimately familiar with the details of 

those reports. 

Mr. MCKINLEY. Interesting. They have done two reports, and 

both times the EPA has said it is not a hazardous material. So 

your statements in your testimony are based on what fact? 

Ms. HARRISON. Based on—actually, I—— 

Mr. MCKINLEY. Do you have the educational background, science 

background, to differ with them on this? If the EPA has said it is 

OK—— 

Ms. HARRISON. No, I have submitted with my testimony some 

pretty significant research that has taken place at Duke University. And that study that was released and attached to my testimony by—— 

Mr. MCKINLEY. No, my question was, how did you differ from the 

EPA’s own determination? They have done it in 1993 and 2000. 

Both times they said, the EPA, that the fly ash is not a hazardous 

material, and it should be continued to be recycled. It is a way of 

taking care of the product. 

So if you are differing from that, I am just curious, on what scientific basis are you saying the EPA is wrong? 

Ms. HARRISON. As I mentioned—thank you for that question. 

As I mentioned, we have had some scientific studies that have 

been undertaken in North Carolina by Duke University, Dr. 

Vengosh. I included it in my testimony, and it shows contamination 

from seepages from some of these coal ash ponds. 

112 

Mr. MCKINLEY. The material—I think one of the material differences is that the opponents of the legislation—and we have 

passed it four times out of the House—is that they did not—the 

people in the House did not want the EPA to have primacy, and 

they wanted to retain that control with the State legislatures, State 

governing groups. 

Now, are you saying that North Carolina doesn’t have the expertise to handle fly ash? 

Ms. HARRISON. Yes, sir. That has been my experience with working with our agencies and working with the legislature and trying 

to get a better, safer regulatory regime for coal ash. I don’t feel like 

we have good regulations in place. 

Mr. MCKINLEY. Do you know that—do you—the way you have 

acknowledged that you haven’t even read the bill and you don’t 

know the differences. You know, in the bill, one of the major differences was that we listened to people like you and we put language into the bill to deal with the disposal of fly ash that heretofore is not in current law. And for you in North Carolina, it gave 

you the ability in North Carolina to call for liners under new impoundments. 

So we are trying—and the EPA—and, furthermore, that if the 

EPA determines that you in North Carolina are not following those 

standards, they can seize the landfill and take over primacy themselves. 

So by virtue of what you are saying, you were having a problem 

that you thought you—with the legislation. It actually was intended to help you in North Carolina and any other State that has 

some degree, or lack thereof, of how to dispose of fly ash. 

So I am really troubled by your remarks and particularly your 

written testimony. And I appreciate what you are saying. I am— 

fortunately, we have run over time. But thank you. Because you 

have explained a little bit about why you have taken the position 

you have had. Thank you very much. 

Ms. HARRISON. I appreciate that. I think a lot of my remarks 

were driven by the findings of the CRS report. And I think they 

found significant shortcomings with the bill. And I think I was basing my testimony on that, the CRS report. 

Thank you. 

Mr. MCKINLEY. OK. So, in other words, you are in opposition to 

what the Environmental Council of States, one of the more wellrecognized groups around the country, that they were supporting; 

the Association of State and Territorial Solid Waste—so many people all came together, the stakeholders, to make this bill possible. 

And you are saying they were wrong. I find that curious. 

Thank you very much. Sorry. I yield back my time. 

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

Just for comity and appreciation for the committee, not everyone 

has a lot of scientific expert—I definitely don’t. I understand legislators trying to be involved. And I am a big coal ash supporter. We 

appreciate your being here and your testimony. 

I want to do a couple more pieces of business. I ask unanimous 

consent to include statements from seven environmental groups, 

dated February 15, 2013; a statement from Patrick Parenteau, Pa-r-e-n-t-e-a-u; and a statement from Susan Bodine for the record. 

113 

Without objection, so ordered. 

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

Mr. SHIMKUS. We still have—Mr. Bilirakis, are you prepared to 

ask questions? 

The chair recognizes the gentleman from Florida for 5 minutes. 

Mr. BILIRAKIS. Thanks so much. Appreciate it. 

Chairman Shimkus and Ranking Member Tonko, I am honored, 

of course, to have the opportunity to represent Florida’s Ninth— 

12th Congressional District—it is 12 now—on the committee, and 

I look forward to working with you. Thank you forgiving me the opportunity to serve on this committee. 

Ms. Marks, you have spoken about the delegation process and 

the importance of respect between the Federal and local agencies 

responsible for protecting the public. Unfortunately, this relationship does not always live up to our ideals. For example, the EPA 

issued an America nutrient criteria for Florida to avoid litigation 

with environmental groups and, in the process, circumvented the 

State’s reasonable and scientifically based efforts to address its 

water quality. That rule was based on flawed science, had no consideration for the harm it would inflict on Florida jobs, particularly 

in agriculture, and was a threat to other States’ rights to self-regulate. 

Considering the EPA’s recent agenda, what are some of the examples of specific steps that Congress can take to ensure that State 

and local governments are able to compete with Federal agencies 

on a level playing field when disputes over Federal regulations are 

called into question? 

Thank you. 

Ms. HARRISON. Thank you, Congressman. 

I am not sure that I can tell you what type of specific statutes 

might be passed or anything to that effect. 

I can tell you that we certainly are concerned that cooperation 

with the States be encouraged at every point, that there be full disclosure with the States. We would like to be in on the rulemaking 

process at an earlier time, and we would like to certainly be in on 

the guidance that is issued with these rules. There have been 

times, I think, where guidance has been issued that has not adequately taken into account the effects that it will have, particularly 

the resources it will drain from the States. 

So we would like to work with EPA. And I don’t know if a statute 

would be necessary in that regard—— 

Mr. BILIRAKIS. Well, any steps, exactly, not necessarily statutes. 

Ms. MARKS. We would like to work with EPA and have EPA encouraged to work with us on getting us involved early in the adoption of rules and on the guidelines to implement those rules. 

Mr. BILIRAKIS. Very good. 

Anyone else on the panel wish to comment? 

Well, thank you very much, Mr. Chairman. Appreciate it. I yield 

back the balance of my time. 

Mr. SHIMKUS. The Gentleman yields back his time. 

The chair recognizes the gentlelady from Colorado, Ms. DeGette, 

for 5 minutes. 

Ms. DEGETTE. Thank you very much, Mr. Chairman. 

114 

For those of you who don’t know, I have been working on a bill 

called the FRAC Act since 2006. And what this bill basically does 

is it says, just like every other industry or activity that puts substances into drinking water, the oil and gas industry should be subject to the requirements of the Safe Drinking Water Act. 

Now, as you all know and we know, what the Safe Drinking 

Water Act does is it establishes baseline requirements for underground injection control, but then States may set stricter standards. And, also, the EPA works with States to make sure that they 

promulgate regulations that are unique and work for those States. 

So, for example, if you have a State like my State of Colorado 

or Pennsylvania or North Carolina or California or New York or 

any of these other States that are doing hydraulic fracturing, the 

geologic issues are different in all of those States, the depth of the 

wells is different in all of those States. 

So the Safe Drinking Water Act wouldn’t put a cookie-cutter 

process into place. What it would simply do is say, you have to 

meet a minimum requirement for the chemicals that are being injected into that ground. And you have to have a readily accessible 

disclosure scheme. 

And, frankly, a couple of years ago, the industry and I were this 

close to being able to come up with an agreed-upon reporting 

scheme that would not be overly onerous but would allow consumers to see what chemicals were going into their drinking water. 

I am getting ready to reintroduce that bill again next month, and 

I want to ask a couple of questions around that. 

First of all, Mr. Lepore, since you are my guy from Colorado, and 

I am so proud of the work that your agency has done, Colorado, you 

would say we are really in the vanguard of the States that have 

enacted rules around fracking and natural gas development, correct? 

Mr. LEPORE. Yes, I would. 

Ms. DEGETTE. And one reason is because, as you said, we have 

been doing natural gas and oil in Colorado for over 100 years, 

right? 

Mr. LEPORE. Yes. 

Ms. DEGETTE. Now, Representative Harrison, in your State, you 

said you only just started fracking, and you really don’t have a regulatory scheme, right? Is that correct? 

Ms. HARRISON. Actually, we haven’t actually started fracking. We 

lifted the ban on fracking and are anticipating permitting in the 

next year or 2. 

Ms. DEGETTE. So you have absolutely no regulatory history on 

hydraulic fracturing. 

And this is particularly true with fracking, Mr. Chairman, because it is a technique that has been found to use in all types of 

formations, whereas, before, some of the traditional techniques 

were not economically feasible to use all around the country. 

So, Mr. Lepore, I wanted to ask you, if we have widely ranging 

techniques and formations and State regulatory frameworks, I am 

going to assume that you and your association wouldn’t disagree if 

there was a Federal disclosure rule that was sort of a baseline rule 

so long as the EPA worked with States and States could adapt that 

to their own needs, correct? 

115 

Mr. LEPORE. With the caveat that the devil is in the details. 

Ms. DEGETTE. Well, obviously. But, I mean, the general concept, 

you don’t disagree with that, right? 

Mr. LEPORE. The general concept of disclosure I do not disagree 

with. 

Ms. DEGETTE. OK. 

And let me ask you another question. In your written testimony, 

you said that the Colorado Commission prides itself on oil and gas 

development tailored to the needs of specific basin, environments, 

and communities. 

Do you think that further flexibility is needed for development on 

split estate lands? 

Mr. LEPORE. Split mineral and surface estate lands? 

Ms. DEGETTE. Yes. 

Mr. LEPORE. I think that is why we have the rules that we have 

and why we have just gone through the setback—— 

Ms. DEGETTE. So would you say, yes, local consultation is necessary to do that? 

Mr. LEPORE. With local governments? 

Ms. DEGETTE. Yes. 

Mr. LEPORE. I think engaging with local governments is very important. 

Ms. DEGETTE. It is critical, right? 

Mr. LEPORE. Yes. 

Ms. DEGETTE. Thanks. 

And one more thing, I wanted to ask you about this reporting 

under FracFocus. How many States are requiring disclosure of 

frack fluid components through FracFocus? 

Mr. LEPORE. I am getting two different answers, but—— 

Ms. DEGETTE. Mr. Fitch, do you know the answer to that? 

Mr. LEPORE [continuing]. I believe the answer is 10 or 13. 

Ms. DEGETTE. OK. 

Mr. LEPORE. Thirteen. 

Ms. DEGETTE. And is it required disclosure through FracFocus, 

or is it voluntary disclosure? 

Mr. LEPORE. Required by statute or rule, as I—— 

Ms. DEGETTE. In all of those States? Yes. OK. The audience 

member is nodding yes. 

So that is about 10 or 12 States, correct? 

Maybe, Mr. Fitch or Mr. Lepore, you can supplement your testimony and give me a list of those States. I am sure my staff knows, 

but I don’t know off the top of my head. 

One last thing I wanted to ask is, the EPA study on the fracking 

is coming out next year. And once that happens, then we are going 

to all sit down, and I hope that you will come and help us work 

this out to see what the appropriate regulatory framework will be. 

Because I think the States and the Federal Government really 

need to work together on this issue. 

Thank you for your comity, Mr. Chairman. 

Mr. SHIMKUS. The gentlelady yields back her time. 

The chair now recognizes the ranking member of the full committee, Mr. Waxman, for 5 minutes. 

Mr. WAXMAN. Thank you very much, Mr. Chairman. 

116 

We have heard today from some of the witnesses that we can 

rely upon the States—or Members—we can rely on the States to 

protect the public health and environment, and, therefore, a reduced Federal role is appropriate. But the States’ track records are 

not flawless. 

For example, sea-level rise is an undisputed consequence of a 

warming climate. Many States are dealing with this challenge, but 

the response is not uniform. For example, the scientists on North 

Carolina’s Coastal Resource Commission recently concluded that 

North Carolina could see a sea-level rise of more than 3 feet by the 

end of the century. This is critically important information for 

coastal development decisions, but the information wasn’t consistent with the ideology of some in the General Assembly. 

Representative Harrison, are you familiar with what happened 

in the General Assembly, and could you tell us about it? 

Ms. HARRISON. Yes, sir, I am. It was rather a black mark in the 

history of our legislature, I think. 

What happened was, under pressure from developers in the communities on the coast, legislation was introduced that would have 

banned the calculation of sea-level rise as a factor in climate 

change and acceleration from thermal expansion and melting glaciers. So rather than factoring in a trajectory of about a meter sealevel rise over the next century, the legislation would have in fact 

limited us to anticipate an 8-inch rise in sea-level rise. 

We are particularly vulnerable in North Carolina because of our 

4,000-plus miles of shoreline and the low-lying areas near the 

shoreline. So this is a real problem for folks who are trying to have 

a better adaptation strategy—— 

Mr. WAXMAN. The bill that was introduced would have precluded 

the commission from planning for anything other than 8 inches of 

sea-level rise. Is that right? 

Ms. HARRISON. Yes, sir. 

Mr. WAXMAN. And after enduring public ridicule, the legislature 

succeeded in blocking the Coastal Resources Commission from estimating rates of sea-level change until July 1, 2016. Is that right? 

Ms. HARRISON. Yes, sir. 

Mr. WAXMAN. Well, in your view, was this policy a policy that ensures North Carolina makes the best decision possible about its 

coastal development? 

Ms. HARRISON. I think it is sort of reflective of the current attitude of the legislature, that they are not doing what is best for the 

State or its resources. 

Mr. WAXMAN. Well, States play a critical role in environmental 

protection, but they don’t always get it right. And in some cases, 

as in the North Carolina example, State legislatures have proposed 

or passed bills to tie the hands of the State regulators, whose job 

it is to protect the environment and public health. 

Another example is South Dakota. And numerous other States 

have laws on the books, as well, that prohibit the State agencies 

from taking any actions that are more protective than rules adopted by the Federal Government. In Ohio, the State environmental 

agency is blocked from setting air quality standards that are more 

stringent than the Federal standards. And those are just a few examples. 

117 

State regulators may have the best interests of public health and 

environment at heart, but they can only do what their legislatures 

authorize them to do. 

I assume that—do any of the witnesses disagree that an agency 

can’t take action if their State legislatures enact a law that blocks 

them from doing so? Does anybody disagree with that? That is just 

the reality. 

While some here may believe that State regulators will always 

be better than Federal regulators at protecting the local environment, we have to remember this important lesson: Polluters are 

fighting hard at the State level, as they do at the Federal level, to 

block or weaken meaningful safeguards. And that is why it makes 

sense to set a Federal floor of protection for environmental laws, 

so that all Americans are guaranteed a minimum baseline of protection. I wanted to bring out that point. 

And thank you, Mr. Chairman. I will yield back the balance of 

my time. 

Mr. SHIMKUS. The gentleman yields back his time. 

Seeing no other Members present—Mr. Tonko, do you wish to be 

recognized? 

Mr. TONKO. Yes, Mr. Chair, just briefly. And I appreciated the 

comments you offered on behalf of the subcommittee concerning the 

cross-examination of our witness, Representative Harrison. 

But I am compelled to state that, you know, the representative 

was invited here to speak as a legislator on behalf of the National 

Caucus of Environmental Legislators. She cited a scientific review 

or a study done by others. 

And I thought that the cross-examination just didn’t respect this 

panel and its sacrifice, in whatever dimension, to be here today. 

Their role is to inform us and to share their opinions. And I found 

that being treated as a scientist, which—I don’t know her resume, 

but she was here as a legislator. And, you know, to begin with, 

2273 had passed the House, but 1391 wasn’t even released from 

committee. 

And, again, I just feel it is important for us to stay focused on 

the perspective that was being shared at the table by our witnesses, and we show due respect when we conduct ourselves that 

way. So I was very concerned about the cross-examination by the 

gentleman from West Virginia. 

With that, I yield back. 

Mr. SHIMKUS. The gentleman yields back his time. 

And I appreciate the comments. And I would just hope that, as 

we move forward, that the same concern expressed on this exchange will be the same expressed on the other side whence there 

are other interchanges that will occur, because we are a big, powerful committee here in Washington, we have divergent views, and 

we fight like cats and dogs. We can agree to disagree respectfully, 

and I think that is the point being made. And we will do our utmost to try to do that. 

We do thank you. Great testimony. We appreciate you coming 

here. Thanks for staying through lunch so that everyone had a 

chance to come and ask their questions. 

You may get a few questions for the record submitted by Members who were here or even were not here but are members of the 

118 

committee. If you would get those back to us as promptly as possible. 

I think our rules say—do we give a set time? 

We have no idea. So try to do it as soon as possible. We would 

appreciate it. 

With that, I will adjourn the hearing. 

[Whereupon, at 12:04 p.m., the subcommittee was adjourned.] 

[Material submitted for inclusion in the record follows:] 

119 


79850.073

February 15,2013 

STATEMENT FOR THE RECORD 

HOUSE ENERGY AND COMMERCE COMMITTEE 

SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY 

"The Role of States in Protecting the Environment Under Current Law" 

Earthjustice, Clean Water Action, Sierra Club, Natural Resources Defense Council, 

Appalachian Voices, Environmental Integrity Project, and Citizens Coal Council 

appreciate the opportunity to submit this statement for the record. Together our 

organizations represent several million citizens in all 50 states. Our organizations work 

for strong health and environmental protections and have a long history of encouraging 

and assisting in the implementation of the Resource Conservation and Recovery Act 

(RCRA), Clean Water Act (CWA), Safe Drinking Water Act (SDWA), and the Clean Air 

Act (CAA), as well as other federal environmental statutes. 

The U.S. Environmental Protection Agency (EPA) is the steward of national 

environmental protection. It is therefore essential that EPA establish minimnm federal 

standards sufficient to ensure clean and healthy water and air under federal environmental 

statutes, maintain clear benchmarks for state performance, and implement effective 

enforcement to guarantee consistent nationwide compliance. The federal authority 

afforded EPA under the RCRA, CW A, CAA, and SDW A to ensure consistent and 

scientifically sound national regulations, as well as fair and effective enforcement of 

standards, is critical to the protection of all communities. While the States have an 

essential role in implementing delegated programs, EPA must serves as an effective 

backstop to ensure consistent enforcement and implementation under federal statutes. 

Recent bills in the 112th Congress, including H.R. 2273 and H.R. 4043, attempted to 

constrain this essential function of the EPA. Among other constraints, these bills would 

reduce EPA's authority to perform oversight of state programs, reduce EPA's ability to 

ensure effective enforcement of environmental laws, and prevent EPA from setting 

national standards through rulemaking. For the following reasons, we urge this 

subcommittee to protect EPA's rulemaking and oversight role to ensure consistent and 

protective programs that protect the health and environment of all Americans: 

Pollution does not obey state borders: Because environmental pollution 

often migrates across state lines, pollution in one state may cause damage in 

another. National consistency of state programs ensures that all Americans live 

in states that meet minimum environmental standards. 

• Prevention of unfair economic advantage: Federal standards level the 

playing field among regulated entities, preventing a "race to the bottom" and 

ensuring that regulated facilities in one state do not have an unfair economic 

advantage over facilities in other states. In addition, through consistent 

enforcement nationwide, law-abiding facilities are not placed at an economic 

disadvantage to those facilities that choose not to comply with the law. 
120 


79850.074

Effective national enforcement. EPA's authority to enforce consistent, 

minimum safeguards in states where enforcement is absent or inadequate is a 

necessary failsafe protection established by Congress in the RCRA, CW A, CAA 

and SDW A. By authorizing states to enforce portions of these acts, EPA does not 

forfeit its authority to continue to conduct its own inspections and take action 

against polluters, particularly when violations are widespread or related to a 

national priority. EPA can engage in independent enforcement activities in states 

and also take action against polluters when it determines a state either did not act 

or did not take strong enough action. Ultimately EPA's authority to withdraw 

state programs when states fail to take appropriate enforcement action ensures 

consistent national protection. 

• Nationwide programs that meet federal requirements. According to federal 

federal regulations, EPA must provide adequate oversight so that it can 

determine when states fail to meet their federally-mandated enforcement and 

implementation commitments. Without effective monitoring of state programs 

under clear statutory standards, EPA cannot ensure national consistency. 

• Assurance that rules reflect the best science. EPA retains a vital role under 

role under federal environmental statutes to ensure that its rules reflect the best 

science and thus effectively protect human health and the environment. Without 

authority to revisit rules in the face of changing technologies and advancing 

science, there is no assurance that the American public will be protected from 

new threats to health and the environment in the most efficient and effective 

manner. 

There can be no national consistency of protective standards without a strong and 

uncompromised EPA. Nor can American communities and industries be ensured of 

consistent and effective enforcement of such standards without a strong EPA backstop. 

In the absence of minimum federal standards, environmental disasters have been 

mounting at both coal ash and natural gas hydrofracking sites. We urge all members to 

consider the essential role of EPA before abridging its ability to perform the critical 

functions that protect the health and environment of all Americans. 

We appreciate the opportunity to submit this statement. 

Respectfully, 

Lynn Thorp, Clean Water Action 

Debbie Sease, Sierra Club 

Scott Slesinger, Natural Resources Defense Council 

Lisa Evans, Earthjustice 

Eric Schaeffer, Environmental Integrity Project 

Jeffrey Stant, Citizens Coal Council 

Tom Cormons, Appalachian Voices 
121 


79850.075

Committee on Energy and Commerce 

Subcommittee on Environment and the Economy 

U.S House of Representatives 

Oversight Hearing: 

The Role of the Stotes in Protecting the Environment under Current Law 

February 15, 2013 

Statement of Patrick Parenteau 

Dear Chairman Shimkus and members of the Subcommittee. 

I appreciate the opportunity to submit this brief statement for the record in the above 

captioned hearing. I am currently a professor of law and senior counsel to the Environmental 

and Natural Resources Law Clinic at Vermont Law School. I have been involved in drafting, 

litigating, administering, teaching, and writing about environmental law and policy for almost 

forty years. I have seen environmental law from virtually every perspective. I have represented 

environmental organizations seeking to enforce these laws as well as industries seeking to 

comply. As it relates to the topic of today's hearing my experience includes serving as Regional 

Counsel for Region I of the Environmental Protection Agency from 1984-87, and as 

Commissioner of the Vermont Department of Environmental Conservation from 1987-1990. In 

these roles I have had the opportunity to see exactly how the "cooperative federalism" model 

of many environmental laws actually work in practice. I would like to share a few perspectives 

that I hope will be of benefit to the subcommittee as it takes up important and difficult 

questions such as how to improve the management of coal combustion residue to better 

protect public health and the environment. 

First, the basic model incorporated into all of the major pollution control statutes-air, water, 

waste-is that EPA sets the floor of protection for public health and the states are free to set 

more stringent standards. That model has worked successfully for over 40 years and has saved 

the lives and improved the health of countless Americans without impeding economic growth; 

in fact GDP has grown by over 200% over this period of environmental regulation. No matter 

where Americans live they can rest assured that the air they breathe, the water they drink and 

the land use is being protected. This was not always the case before the era of federal 

environmental laws. We do not want to go back to the pollution havens of the past. One only 

has to look at the stark images coming from Beijing, New Delhi, or Mexico City to see what can 

happen in the absence of strong national pollution control programs. 

1 
122 


79850.076

Second, there are many situations where the states cannot address the sources of pollution 

that originate beyond their borders. For example, the acid rain that was killing the lakes of the 

Adirondacks and damaging the forests here in Vermont was coming from coal-fired power 

plants in the Midwest. The problem was only addressed when Congress amended the Clean Air 

Act to set up a special market-based control program administered by EPA to reduce the 

emissions of sulfur dioxide coming from these distant plants. More recently in the Cross State 

Air Pollution Rule EPA was once again called upon to fashion a national control program to 

protect the health of residents in downwind states who were otherwise powerless to stop the 

pollution. Similar problems exist with water pollution. The dead zone in the Gulf of Mexico, 

which is causing tremendous economic harm to the states and communities that rely heavily on 

fishing and tourism, is the result of polluting discharges and runoff from point and nonpoint 

sources throughout the vast landscape of the Mississippi River watershed. No one state, or 

even a collection of states, can deal with a problem of this scope. Indeed, in the case of 

Chesapeake Bay, it was the states in the basin that turned to EPA for help in setting a TMDL 

(pollution budget) for nutrients to facilitate development of a market-based water quality 

trading program that the states are now in the process of implementing. A similar program has 

been established in Long Island Sound. In the Great Lakes EPA was called upon to set a standard 

for mercury that no one state had the authority to set. 

Third, states often lack the capacity to deal with major problems even within their own borders. 

This was exactly the case with the discovery of Love Canal in the late '70s and the ensuing 

explosion of hazardous waste sites all across the country. One of the first sites to be listed on 

the National Priority List was the Pine Street Barge Canal in Burlington, Vermont. This was a 

technically challenging site to address; those responsible for the pollution had long since 

departed the scene; the current PRPs were reluctant to step forward and undertake a costly 

cleanup; and it was unclear what the best remedial option was. In short the state of Vermont 

did not have the wherewithal to tackle a problem like this. It took EPA and years of study, 

negotiation and experimentation to finally come up with a solution and a comprehensive 

settlement with affected parties. This story has been repeated at other hazardous waste sites in 

Vermont and in thousands of communities across the country. These sites simply would not 

have been cleaned up were it not for CERCLA and EPA. And of course the "polluter pays" 

concept imbedded in CERCLA's liability scheme, along with the prospective regulation of solid 

and hazardous wastes under RCRA, has led to significant improvement in reducing and 

properly handling hazardous materials. 

Fourth, there is value in having EPA set uniform standards of performance that can be 

incorporated into permits; provided of course there is sufficient flexibility to account for unique 

circumstances and unexpected consequences. Most of the time, however, it is better for all 

concerned, including the public and the regulated entities, to have rules that are clear, specific 

2 
123 


79850.077

and relatively stable and predictable. By contrast a legal framework that leaves everything to 

the discretion of individual states is a recipe for failure. A perfect example is the management 

of hazardous wastes. The rule banning the disposal of liquid hazardous wastes in landfills has 

done a lot to protect underground sources of public drinking water and prevent future 

Superfund sites. It was a common sense rule but it took EPA to put it into effect. No state was 

willing to step forward and be the first to impose such a ban. Similarly, in the case of coal 

combustion residue, it would make sense to have consistent standards of siting, design and 

construction for waste impoundments. Even though site characteristics will vary and precise 

construction specifications will be need to accommodate local conditions, the basic safety 

standards should be the same as they are for many other industrial activities. The same can be 

said offinancial responsibility and closure requirements. These are simply elements of 

responsible environmental management that should apply everywhere. Industry should 

welcome the clear rules and level playing field that allows for sound business planning. 

Fifth, there are times when having EPA backup is important even where a state has a good 

environmental regulatory program in place. The truth is that states do not always have the 

expertise, the resources, the authority or the political will to take actions required to protect 

public health and the environment. The cleanup of Boston Harbor is a case in point. When I 

arrived at EPA Region I in the summer of 1984 the harbor was a stinking mess. The treatment 

works were antiquated, the sludge was being disposed of on the outgoing tide and it was 

unsafe to swim or even walk the beaches at certain times of the year. And this was happening 

in a relatively wealthy and sophisticated metropolitan area in a state with a progressive 

government that prided itself on its environmental record. But it took a lawsuit by EPA to 

overcome the inertia, opposition and squabbling among the jurisdictions that were contributing 

to the problem but reluctant to shoulder the responsibility for the solutions. Today Boston 

Harbor is regarded as the "Great American Jewel." Without EPA this remarkable turnaround 

would not have been possible. Even in a State like Vermont, with its well-deserved reputation 

for environmental quality, EPA has had to step in and investigate pollution from dairy farms 

that are causing water quality problems in Lake Champlain. The point is that no state -- no 

matter how well intentioned --can deal with every single environmental problem that needs 

attention. Having a strong and vigilant EPA at the ready is an important safety net for public 

health and environmental protection. 

Finally I have read the Congressional Research Service report on H.R. 2273 and S. 3512 titled 

"Analysis of Proposals to Create a Coal Combustion Residuals Permit Program under RCRA." I 

understand this report has created some controversy within the subcommittee, and I have no 

wish to take sides in the political debate. What I can say from my experience as both a federal 

and state regulator is that the report raises important questions with the proposed legislation 

that need to be addressed if problems are to be avoided down the line. Specifically, the 

3 
124 


79850.078

regulatory framework proposed in section 4011 of both bills would in fact establish a novel and 

problematic structure for state-federal management of CCR. A detailed analysis of the CRS 

report and the subject bills is beyond the scope of this statement. But I do find myself in 

agreement with the report's overall conclusion that "the proposed amendments to RCRA 

include no provisions that would ensure state adoption and implementation of a CCR permit 

program that would result in the adoption and implementation of minimum federal standards 

necessary to protect human health and the environment from risks associated with CCR 

disposal." I would also note that EPA has raised many of the same questions and problems with 

the bills as the CRS report. I am particularly concerned by EPA's statement that HR 2273 "does 

not grant the EPA the authority to meaningfully evaluate the substance or adequacy of state 

CCR programs at the time of the initial certification." Unless corrected, this approach is 

guaranteed to create unnecessary conflict and confusion. Unless EPA and the states are on the 

same page when designing regulatory programs there is bound to be trouble. The regulated 

industries will be caught in the middle. The public will be confused and lose confidence in the 

regulators. Much time will be wasted trying to sort out disagreements and repair relationships. 

I have seen this happen and it is not good government. The program should be designed right 

the first time; the rules must be well crafted to accomplish the purpose of protecting public 

health; and everyone must be held accountable. 

In dosing I urge the committee to carefully consider the problems with the proposed bills 

identified in the CRS report and EPA comments. We have 40 years of experience with a system 

in which EPA and the states have collaborated in the important task of safeguarding the public 

health from proven environmental dangers such as the irresponsible disposal of CCR. In my 

view the only way this problem will be resolved is through a strong partnership between EPA 

and the states in the development and implementation of a national program grounded on 

science, fully transparent and with clear, enforceable standards of conduct. 

Thank you for considering these observations. 

4 
125 


79850.079

S.3512 "Coal Ash Recycling and Oversight Act of2012" and the Resource Conservation 

and Recovery Act 

Susan Parker Bodine 

Barnes & Thornburgl 

Many have described the Resource Conservation and Recovery Act (RCRA) as "an inch wide 

and a mile deep." That description reflects the fact that under RCRA, Congress directed EPA to 

promulgate and implement detailed and extensive regulations prescribing specific requirements 

for the management of materials that are hazardous wastes. These regulations are authorized 

under Subtitle C of RCRA. However, if a waste material is not a hazardous waste it is 

essentially unregulated at the federal level. This division of labor reflects that fact that impacts 

from solid waste management are local and that Congress has determined that the management 

of non-hazardous waste does not rise to the level of federal interest. 

The exception to this general rule is the regulation of municipal solid waste landfills authorized 

under Subtitle D of RCRA. Under Subtitle D, EPA is authorized to establish guidelines to assist 

in the development and implementation of state solid waste management plans. If approved by 

EPA, these plans make the state eligible for federal assistance. Under Subtitle D, EPA also is 

required to promulgate regulations that establish criteria for sanitary landfills. Landfills that do 

not meet the EPA-established criteria are classified as open dumps. Under section 4005 of 

RCRA, open dumping of solid waste is prohibited and open dumps must either be upgraded to 

meet the sanitary landfill criteria or be closed. The prohibition on open dumping is enforceable 

by citizens under 7002 of RCRA, and, in states that do not have an adequate permit program, is 

directly enforceable by EPA under section 3008 of RCRA. In addition, EPA has authority under 

section 7003 to take action against any person who is contributing to an imminent and substantial 

endangerment caused by the management of solid or hazardous waste, authority under 106 of the 

Comprehensive Environmental Response, Liability and Compensation Act (CERCLA) to order 

responsible parties to respond to releases of hazardous substances into the environment, and 

authority under section 104 of CERCLA to take direct action to respond to such a release. This 

statutory framework reflects the view of Congress that states should be the lead regulators of 

non-hazardous waste, while allowing EPA to take action if a state program is inadequate or if 

there is a specific environmental risk that must be addressed. 

In May 2000, EPA made a Regulatory Determination under section 3001(b)(3)(C) that regulation 

of fossil fuel combustion wastes is not warranted under Subtitle C ofRCRA. As a result, the 

disposal of such wastes is left to that states, subject to the prohibition on open dumping under 

Subtitle D and the EPA authorities discussed above. 

I Ms. Bodine was the Assistant Administrator for EPA's Office of Solid Waste and Emergency Response from 

January 2006 through January 2009. In this capacity, Ms. Bodine was the head of the EPA office responsible for 

implementing the Resource Conservation and Recovery Act. The opinions in this paper are her own. 
126 


79850.080

S. 3512, the Coal Ash Recycling and Oversight Act of2012, is consistent with the structure of 

RCRA. S. 3512 would amend Subtitle D of RCRA to establish criteria for the design, ground 

water monitoring, corrective action, closure, and post-closure care for structures (including 

surface impoundments) that receive coal combustion residuals. The Act also would establish 

specific requirements for state permit programs to implement the new criteria. If a state decides 

not to implement such a program, or develops a program that does not meet the statutory criteria 

and fails to correct the deficiencies, then the Act gives EPA the authority to implement the 

program in lieu of the state, and can enforce that program under section 3008 of RCRA. It 

would be a violation of the lOth Amendment to the Constitution for Congress to purport to 

compel states to adopt a federal regulatory scheme. Authorizing EPA to implement a program in 

the case of state inaction is a way to constitutionally ensure that a regulatory program is carried 

out in a state, and this is the mechanism adopted by S. 3512. 

S. 3512 goes further than Subtitle D of RCRA and also gives EPA express authority to 

implement the coal ash structure permitting program for lands in a state over which the state has 

limited jurisdiction, such as Indian Country. The Act also goes further than Subtitle D in that it 

allows EPA to provide enforcement assistance to states, upon request. 

S. 3512 does not require EPA to issue implementing regulations. However, it is not necessary 

for EPA to promulgate federal regulations to operate in lieu of state regulations should EPA 

implement a coal combustion residuals permitting program in a state. The requirements of the 

program include reference to existing federal regulations for sanitary landfills at 40 C.F.R. Part 

258. In addition, EPA has demonstrated its ability to implement RCRA without promulgating 

implementing regulations. For example, EPA never promulgated regulations governing the 

application of the Hazardous and Solid Waste Amendments of 1984 to existing hazardous waste 

surface impoundments under section 3005(j) of RCRA. Notwithstanding the lack of federal 

regulations to implement this section of RCRA, some states chose to adopt regulations and seek 

authorization to implement it, but most did not. So, this section of RCRA was implemented by 

EPA with no regulations. Further, while EPA has promulgated regulatory procedures to approve 

state Subtitle D landfill permitting programs (40 C.F.R. Part 239) EPA has never promulgated 

federal regulations that would apply in the case of disapproval of a state program. "In states with 

no approved permitting program, Subtitle D landfill owners and operators must follow the 

specific, self-implementing provisions of the federal requirements." EPA530-F-98-024 (Oct. 

1998). This same regulatory structure is adopted by S. 3512. 

Fossil fuel combustion wastes are not hazardous wastes so S. 3512 appropriately leaves the 

regulation of these wastes to states, while establishing federal criteria for the disposal of these 

wastes, to be implemented through state law and enforced through state authorities, while 

authorizing a federal program in the case of state inaction. This is not the same statutory and 

regulatory structure that Congress created under RCRA Subtitle C for hazardous wastes, but that 

is appropriate given the fact that coal combustion residuals are a high volume, low toxicity waste 

stream for which the comprehensive "cradle-to-grave" regulatory regime would be inappropriate. 

In fact, attempting to regulate coal combustion residuals under Subtitle C ofRCRA likely would 

overwhelm the resources of both states and EPA. Any criticism of S. 3512 as "inconsistent with 
127 


79850.081

RCRA" for choosing a Subtitle D model rather than a Subtitle C model is inappropriate and 

demonstrates a failure to understand the choices Congress has made to distinguish between 

hazardous and non-hazardous wastes. 
128 


79850.082

STATE OF MICHlGAN 

DEPARTMENT OF ENVIRONMENTAL QUALITY 

LANSING 

DEi\. RICK SNYDER 

GOVERNOR 

The Honorable John Shimkus 

May 13, 2013 

Chairman, Subcommittee on Environment and the Economy 

Committee on Energy and Commerce 

2125 Rayburn House Office Building 

Washington, D.C. 20515-6115 

Dear Representative Shimkus: 

DAN WYANT 

DIRECTOR 

Thank you for the opportunity to testify at the hearing before the Subcommittee on 

Environment and the Economy held on February 15, 2013, entitled "The Role of the 

States in Protecting the Environment." 

Attached are my responses to the additional questions for the record submitted 

subsequent to the hearing. 

I appreciate the opportunity to respond to these questions. If you have any more 

questions please contact met at 517-241-1548; fitchh@michigan.gov; or Department of 

Environmental Quality, Office of Oil, Gas, and Minerals, P.O. Box 30256, Lansing, 

Michigan 48909-7756. 

Sincerely, 

Harold R. Fitch 

Assistant Supervisor of Wens 

and Chief 

Office of Oil, Gas, and Minerals 

Michigan Department of Environmental Quality 

517-241-1548 

cc: The Honorable Paul Tonko, Ranking Member, Subcommittee on Environment 

and the Economy 

CONSTITUTION HALL' 525 WEST ALLEGAN STREET' P.O. BOX 30473. LANSING, MICHIGAN 48909·7973 

www.mlcflfgan.govldeq • (800) 662.-9278 
129 


79850.083

The Role of the State in Protecting the Environment Under Current Law 

Additional Questions with Responses 

The Honorable John Shimkus 

1. You mention 12,000 hydraulic fracturing wells in Michigan since 1952 

without an environmental contamination related to the practice. Do other 

states have the same type of record? 

Response: Yes. While there have been incidents of environmental 

contamination resulting from handling or disposal of fracture fluids at the surface 

and from other phases of oil and gas exploration and production, there are no 

known instances of groundwater contamination resulting directly from hydraulic 

fracturing. 

2. What gives you confidence that the information reported on FracFocus is 

accurate and complete? 

Response: Some states require submittal of information on FracFocus; other 

states require submittal directly to the state oil and gas agency, and that 

information can be cross-checked against FracFocus. In either case, states have 

penalties for submittal of false information. In Michigan it is a felony. In addition, 

the effects of adverse publicity are severe if falsification of records is discovered. 

3. At the hearing you mentioned the Underground Injection Control Peer 

Review program. 

a. Is this a new initiative? 

Response: No. The peer Review program has been in existence for more 

than 24 years. 

b. How does it help states evaluate their injection well programs? 

Response: It helps a state to compare its program against consensus 

standards that have been designed to assess the adequacy of the state's 

UIC program to the environment and public health. 

c. Who is involved in this process? 

Response: It is sponsored by the Ground Water Protection Council 

(GWPC). The GWPC recruits reviewers from member state agencies that 

oversee Underground Injection. 

CONSTITUTION HALL· 525 WEST ALLEGAN STREET- P.O. BOX 30473 - LANSING. MICHIGAN 48909-7973 

wv.w.michigan.govldeq· (800) 662·9278 
130 


79850.084

Page 2 

The Role of the State in Protecting the Environment Under Current Law 

Additional Questions with Responses 

d. What is the significance of this program compared other audit 

programs? 

Response: The reviewers are UIC program staff from other states who 

have first-hand, extensive background and experience in underground 

injection and are familiar with the legal and technical challenges involved. 

4. You mention in your testimony that you are a board member of the 

Groundwater Protection Council. 

a. Is it typical that the IOGCC official and the Ground Water Protection 

Council member are different people or are they the same person 

wearing two different hats? 

Response: There are many state agency personnel who are members of 

both organizations. 

b. What are the respective roles of the two sets of officials? 

Response: Members of the Interstate Oil and Gas Compact Commission 

(IOGCC) and the GWPC have the common objective of preventing 

damage to the environment, natural resources, and public health and 

safety. The 10GCC is focused on fostering the efficient development and 

conservation of our domestic oil and gas resources while preventing 

threats of associated damage whereas the GWPC is focused on broad 

issues of ground water use and protection, including potential impacts 

from underground injection and oil and gas operations in general. 

5. Your testimony mentions the rapid changes occurring in the technologies 

used to hydraulically fracture wells. 

a. How do States keep up with technology as it changes on the 

ground? 

Response: State oil and gas agencies stay abreast of changes in 

technology through in-house research, communication with state, regional, 

and national industry and public interest groups, and through seminars 

and training provided by interstate organizations. That information is 

disseminated internally through training sessions and information 

exchange. I must note that my testimony reflects that hydraulic fracturing 

is not a new technology. The changes in recent years have been in the 

increased scale of the use of hydrauliC fracturing, particularly in 

conjunction with horizontal drilling (which has been used since the 1980s). 
131 


79850.085

Page 3 

The Role of the State in Protecting the Environment Under Current Law 

Additional Questions with Responses 

State oil and gas agencies generally have decades of experience with 

both technologies. 

b. Do you have training Centers to educate your regulators on new 

developments? 

Response: The IOGCC and GWPC, as well as other interstate 

organizations, provide training and information exchange sessions for 

state regulators. State oil and gas regulators also organize state-based 

training sessions as needed, utilizing qualified legal and technical experts. 

6. How would you characterize EPA's technical experience as opposed to the 

expertise of State regulators regarding hydraulic fracturing regulation? 

Response: The U.S. Environmental Protection Agency (USEPA) has some staff 

with technical background and experience in oil and gas operations within the 

organization. However, the level of experience and expertise is inconsistent 

across the agency; it is often not focused on the practical operational level; it is 

quite variable at the Region level; and it is typically not specific to the geology, 

legal structure, and special concerns of individual states. 

7. In your testimony you state "a one-size-fits all federal approach would not 

be as effective or efficient" in addressing a state's individual geological 

topographical or societal sensitivities. 

a. Can you please give examples where something is unique to the 

state of Michigan and the adaptability of state level regulations was 

able to address this? 

Response: A good example is the common case where there are several 

Michigan statutory programs that apply to one operation-e.g., where a 

proposed oil and gas well involves statutory provisions that apply to 

wetlands, fish and wildlife, surface impacts, property rights, air quality, etc. 

The state application review can incorporate consideration of all of these 

program concerns in one comprehensive process. 

b. What are some specific concerns of how a federal "one-size-fits aU" 

federal approach would be detrimental to Michigan? 

Response: Federal agency personnel are not always familiar with local 

geology or environmentally-sensitive features. I can cite several incidents 

I have been personally involved in: In one case, the federal agency 

permitted a disposal well that could have posed a threat to fresh water 
132 


79850.086

Page 4 

The Role of the State in Protecting the Environment Under Current Law 

Additional Questions with Responses 

because agency staff were not aware of unique local geologic conditions; 

our state agency, which has dual jurisdiction, denied the permit. In 

another case, the federal agency has delayed issuance of a disposal well 

permit for almost three years largely based in an objection by a local 

citizen that is irrelevant in light of our knowledge of the geology and 

subsurface conditions. 

8. You all emphasize the importance of a risk-based approach to regulation 

and compliance enforcement. How important is local expertise to making 

the risk-based approach effective? In prioritizing which permittees need 

more attention, do you use metrics, personal knowledge of the 

neighborhood, both, or something else? 

Response: Local expertise is essential in assessing risk. My agency prioritizes 

our inspection and enforcement activities based on the type and history of 

operation (e.g., commercial vs. non-commercial, wastewater sources, etc.), 

environmental setting (I.e., sensitive water, wildlife, and aquatic features), history 

of violations of any environmental laws or regulations (I.e., under our state air, 

water, wetland programs, etc.), and personal communications with local citizens 

and oilfield employees. 

9. Do you know of any state that has hydraulic fracturing activities occurring 

in their state with zero regulations regarding these activities? 

Response: No. 

10. Please explain the types of communications that occur between State 

agencies or departments within your State or among the IOGCC members 

regarding the many facets of natural gas development and production. 

Response: At the state level, staff communicate extensively-often on a daily 

basis-between program areas (such as oil and gas, water quality, air quality, 

and waste management) and between departments (such as environmental 

quality, conservation. state land management, public utility, and treasury 

departments) to coordinate actions and share information. State oil and gas 

agencies communicate with their counterparts in other states through the IOGCC 

and other inter-state organizations to share information and regulatory 

approaches, promote best practices, and provide a common voice for state 

interests. 
133 


79850.087

PageS 

The Role of the State in Protecting the Environment Under Current Law 

Additional Questions with Responses 

The Honorable Robert E. Latta 

1. According to the American Petroleum Institute (API), nine million U.S. jobs 

are tied to the oil and natural gas industry, and in my state of Ohio, over 

230,000 jobs are provided or supported by the industry. Furthermore, the 

industry contributes $227 billion to the Ohio economy and those who work 

in the industry (non-gas station employees) eam an average salary of 

$68,000 a year, nearly $30,000 more than the average Ohio salary. 

Advances in technology like hydraulic fracturing are making this possible. 

Can you discuss some of the positive economic impacts that the industry 

is having on your area? 

Response: My agency does not track employment numbers, so I do not have 

direct knowledge of that aspect of the industry. We do, however, track 

production and revenues. Michigan produces about 22 percent of the natural 

gas we use in the state, and most of that gas production is from wells that 

required hydraulic fracturing to be productive. Michigan oil and gas production in 

2012 was valued at more than $1 billion, and provided $48.5 million in state 

severance taxes and additional other revenues from payroll taxes, sales taxes, 

and personal property taxes. 

a. As a follow up question, I mentioned how advances in technology 

are contributing to the success of hydraulic fracturing. What role do 

you see further advances in technology having on the continued 

success of this industry? 

Response: Oil and gas technology is continually evolving, and 

technological advances will undoubtedly have a strong influence on future 

production trends. It is difficult to predict where the next advances may 

occur; however, it is important for our regulatory structures to maintain the 

flexibility and adaptability to accommodate new technology. State 

regulatory programs generally have greater capability for that than do 

federal programs simply because the state programs are more focused 

and changes are much less cumbersome. 

2. Over the past few years, Ohio has put in place some of the nation's 

toughest regulatory measures to ensure hydraulic fracturing and oil and 

gas exploration technologies are conducted in an environmentally safe and 

transparent manner. In fact, I think we're talking about 50 regulations. 

These measures ensure collaboration among stakeholders, proper well 

construction, chemical disclosure requirements, protection of 

groundwater, and sound environmental quality testing methods. These 

high standards of environmental protections allow for a thriving oil and 
134 


79850.088

Page 6 

The Role of the State in Protecting the Environment Under Current Law 

Additional Questions with Responses 

natural gas sector in Ohio. In turn, it creates over 230,000 jobs for Ohioans 

and greater U.S. energy independence and less reliance on foreign oil. Can 

you discuss some measures your state has taken to ensure hydraulic 

fracturing is done in an environmentally safe manner? 

Response: Michigan has had strict and comprehensive oil and gas regulations 

dating back many decades that address concerns with hydraulic fracturing. 

These regulations cover well construction to assure containment of fluids and 

gasses within the wellbore and protect fresh water supplies; spill containment 

and cleanup requirements; and containment and disposal of waste fluids from oil 

and gas operations. Due to recent concern over high-volume hydraulic fracturing 

operations, the Michigan Department of Environmental Quality (MDEQ) 

implemented a new permitting instruction in May, 2011, that covers evaluation of 

impacts of large water withdrawals for hydraulic fracturing, protection of nearby 

water wells, reporting of fluid volumes and pressures, and disclosure of chemical 

additives. 

The Honorable Paul Tonko 

1. The impact of one or two hydraulic fracturing wells in an area may be 

minimal, but the pace of expansion of gas production has been rapid in 

some states and the cumulative impacts of this expansion results in 

additional challenges for local communities, regions and states. For 

example, there are estimates that each well requires additional heavy 

equipment traffic on roads leading to and from the well site to transport the 

construction, operation, and maintenance of the well of as many as 1500 

trips while the well is being constructed and is producing gas. 

The water and chemicals required for hydrofracking and the produced 

water resulting from gas production, the resources required for treating, 

storing, or disposing of these liquids safely are considerable when the 

needs of each well are multiplied by the number of wells in a given area. A 

similar argument can be made regarding fugitive emissions from each 

production well. 

a. How are these cumulative impacts of oil and gas production handled 

within your state's regulatory program? 

. Response: Regulation of truck traffic and routes is generally under the 

purview of local governmental authorities, who can make adjustments 

according to local needs. The MDEQ requires evaluation of the effects of 

water withdrawals at each site; as new sites are proposed, past 

withdrawals are factored in to the model to address cumulative effects. 
135 


79850.089

Page 7 

The Role of the State in Protecting the Environment Under Current Law 

Additional Questions with Responses 

Treatment and storage of spent fracturing fluids and produced water is 

done at each individual site and is temporary. Michigan has excess 

capacity for disposal of waste fluids with existing deep disposal wells and 

volumes of spent hydraulic fracturing fluids are not expected to increase 

significantly. Michigan limits fugitive emissions to levels that will not be an 

air quality concern either at an individual site or when aggregated over a 

field. Michigan also establishes a standard drilling unit-a tract of land of 

specified size on which one well can be located. One purpose of that is to 

limit the density of development so as to reduce site-specific as well as 

cumulative impacts. 

b. What provisions does your state have (e.g. taxes, fees) to ensure that 

the costs of impacts to public resources and for additional 

infrastructure to support oil and gas production are covered by the 

oil and gas industry? 

Response: Michigan imposes an oil and gas severance tax on the gross 

market value of oil and gas produced. The tax rate is 4 percent on 

marginal oil, 6.6 percent on regular oil, and 5 percent on natural gas. The 

revenue goes into the state general fund for multiple purposes, and some 

of it is passed on to local jurisdictions through revenue sharing. The state 

also levies a surveillance fee to support the MDEQ's monitoring and 

enforcement program. The fee is adjusted each year to match the 

appropriation for the program, and is capped at 1 percent of the gross 

value of production. 

2. There are also cumulative impacts on the economics of gas production as 

we are already seeing. States and resource owners certainly receive 

lucrative gross receipts from the produced gas, directly, and economic 

benefits from the increased indirect economic activity associated with the 

increase in workers and demand for all inputs required for production 

activities. However, as gas production continues to expand nationally, the 

market's ability to absorb all the gas produced is being saturated and the 

price per unit has dropped. Certainly individual gas production companies 

realize this and may decide to cap existing wells or to forgo drilling a play 

they have leased to allow supply to be more in line with demand. 

a. Does your state consider the market price of gas in your permitting 

process - permitting fewer wells when the price is lower and 

increasing them when the price improves to ensure the state 

maximizes its return from hosting the expanding gas production? 
136 


79850.090

Page 8 

The Role of the State in Protecting the Environment Under Current law 

Additional Questions with Responses 

Response: No. Determination of the levels of drilling and production are 

viewed as the proper realm of the free market. However, the state will not 

issue a permit if there is no reasonable assurance that the prospective 

product could be marketed- e.g., if there is no potential for a pipeline 

connection for a gas well. 

The Honorable Henry A. Waxman 

Drilling mud and other wastes from the exploration and production of oil and gas 

have been exempt from the requirements of the Resource Conservation and 

Recovery Act since July 1988, but now include recovered hydraulic fracturing 

fluid with potentially dangerous constituents. Democratic members of the Energy 

and Commerce Committee released a report in April, 2011 finding that the top 

hydraulic fracturing companies had injected fluid containing 29 chemicals that 

are known or possible human carcinogens, as well as other contaminants 

regulated under the Clean Air Act-and the Safe' Drinking Water Act 

Despite this, according to the U.S. Department of Transportation's Pipeline and 

Hazardous Materials Safety Administration, shippers and transporters of these 

materials do not have to comply with any Federal hazardous materials safety 

regulations. And, as mentioned above, such mud and other wastes are also 

exempt from requirements under the Resource Conservation and Recovery Act. 

This means that these hazardous materials are not required to be labeled as 

hazardous, contained and transported in accordance with Federal hazardous 

materials regulations or included in shipping manifests to track the material, 

prevent diversion, and ensure proper handling by emergency response personnel 

in accidents and incidents. 

The risks of this approach are illustrated by a recent event in Youngstown, Ohio, 

where authorities were alerted to illegal dumping of drilling fluid into the 

Mahoning River on January 31, 2013, by an anonymous tip. According to Federal 

investigators, the dumping went on for several months before the tip was 

received. Even after the dumping was discovered, state officials failed to inform 

the public and drinking water facilities drawing water downstream of the dumping 

site. Public health and environmental impacts are still being assessed. 

1. What, if any, requirements does your Department impose through 

regulation to ensure that drilling mud and associated wastes from the 

exploration and production of oil and gas are properly disposed? 

Response: The MDEQ requires drilling mud to be contained in steel tanks or 

lined pits at drilling sites. The mud must be dewatered and the solid and 

dissolved salt in the mud must be removed. The residual solids may be either 
137 


79850.091

Page 9 

The Role of the State in Protecting the Environment Under Current Law 

Additional Questions with Responses 

encapsulated on site if they meet criteria for chemical composition or disposed of 

at a licensed landfill. Hydraulic fracturing waste fluids and produced water must 

be contained in tanks and transported for disposal in licensed deep disposal 

wells, although limited volumes of produced water may be spread on roads for 

dust control if the water meets chemical criteria. Liquid wastes must be 

transported by licensed liquid industrial waste haulers, and the wastes must be 

manifested so the source and disposal site are documented. Michigan has strict 

penalties for illegal transport or disposal of wastes. 

2. What, if any, authority or ability does your Department have to address the 

interstate movement of drilling mud and other associated wastes and to 

track such wastes entering or leaving the state? 

Response: Michigan cannot restrict the interstate transport of exploration and 

production wastes because such transportation is deemed interstate commerce 

and thus under the jurisdiction of the federal government. However, Michigan 

does have authority to regulate the characteristics of such wastes and the means 

of subsequent containment and disposal. 

3. How many investigators are employed by your Department to identify and 

investigate illegal dumping of these wastes within the state, and ameliorate 

the potential risks posed by any such dumping? 

Response: The MDEQ has 23 field inspectors who are responsible for monitoring 

virtually all aspects of oil and gas exploration and production, including disposal 

of wastes. The MDEQ also has a significant number of employees in other 

program areas that are responsible for monitoring and investigating liquid waste 

transport and spill cleanup (I am unable to identify the exact number of such 

employees because they are employed by other divisions or offices of the MDEQ 

and typically have other responsibilities in addition to liquid waste monitoring). 

The Honorable Henry A. Waxman and The Honorable Diana DeGette 

1. Does the IOGCC provide technical assistance to reporting companies who 

have questions about how to complete the FracFocus form or what to 

disclose on the form? 

Response: Technical assistance to companies is provided by the Ground Water 

Protection Council (GWPC) and the GWPC contractor. With respect to what to 

disclose on the form most of these questions are referred to the individual states 

because each state may have a different disclosure requirement and it would not 

be proper for FracFocus to provide regulatory guidance to users regarding 

individual state laws and regulations. 
138 


79850.092

Page 10 

The Role of the State in Protecting the Environment Under Current Law 

Additional Questions with Responses 

2. Does the IOGCC offer or provide trainings to reporting companies on how 

to submit data to FracFocus, besides the webinar available on the 

FracFocus website? If so, please explain. 

Response: The GWPC has held numerous webinars and live training events for 

companies, states, and state oil and gas associations. These sessions have 

been designed to provide users with the training needed to access and utilize the 

FracFocus system to submit disclosures. To date the GWPC has held at least 

seven live training events in Texas, Colorado, and Oklahoma. Additional events 

are scheduled for Pennsylvania. 

3. Does the IOGCC consider itself to be a "public agency" and therefore 

subject to the disclosure requirements of the federal Freedom of 

Information Act (FOIA)? Does the IOGCC consider itself subject to the 

disclosure requirements of the Oklahoma Open Records Act? Please 

explain why or why not. 

Response: This question calls for a legal interpretation that I am not qualified to 

answer. 

4. Colorado's regulations state that if the chemical disclosure registry 

(FracFocus) (a) "does not allow the Commission staff and the public to 

search and sort the registry for Colorado information by geographic area, 

ingredient, chemical abstract service number, time period, and operator" 

and (b) there is "no reasonable assurance that the registry will allow for 

such searches by a date certain acceptable to the Commission," then 

operators disclosing to FracFocus also must submit the disclosure forms 

to the Commission for appropriate disclosure. 

a. What is FracFocus doing to ensure that FracFocus meets the 

"search and sort" requirements of Colorado's regulations? 

Response: FracFocus has already met the search and sort requirements 

of the Colorado regulations. The current search forms available on 

FracFocus allow for the searches provided for in the Colorado regulations. 

b. Has IOGCC or FracFocus staff met with the Colorado Oil and Gas 

Commission to discuss this "search and sort" requirement? Please 

explain. 

Response: The GWPC has met with representatives of the COGCC and 

discussed the search and sort requirements. Based on these discussions 
139 


79850.093

Page 11 

The Role of the State in Protecting the Environment Under Current Law 

Additional Questions with Responses 

a date certain for the availability of these elements was defined and has 

been met. 

5. A number of states direct companies to disclose directly to FracFocus or 

provide companies with the option of disclosing to FracFocus. 

a. For those states that require companies to disclose directly to 

FracFocus, such as North Dakota and Utah, does FracFocus provide 

the state agencies with the chemical disclosure forms once 

received? If no, please explain. 

Response: The FracFocus system makes the disclosure forms available 

to everyone, including state agencies. 

b. For those states that provide companies with the option of 

disclosing to FracFocus, such as Montana, does FracFocus provide 

the state agencies with the chemical disclosure forms once 

received? If no, please explain. 

Response: The FracFocus system makes the disclosure forms available 

to everyone, including state agencies. 

c. Does FracFocus notify the relevant state agency when a company 

has submitted a disclosure form for a well? 

Response: The system provides periodic reports of disclosures reported to 

FracFocus to the states. This includes aU disclosures reported but is not 

done on a well by well basis at the request of the states. 

d. Does FracFocus tailor its disclosure form template for each state? If 

no, please explain why. If yes, please describe how FracFocus tailors 

the form. 

Response: The FracFocus template is designed to be flexible enough to 

meet the needs of aU states. There is no need to tailor the form differently 

for each state as it can capture a wide range of information based on 

individual state requirements. 

e. Some states require operators to disclose to FracFocus all chemical 

components in a fracturing fluid, not just chemicals subject to 29 

CFR 1910. 1200(i) and Appendix D. How has FracFocus modified its 

template disclosure form to facilitate operator compliance with 
140 


79850.094

Page 12 

The Role of the State in Protecting the Environment Under Current Law 

Additional Questions with Responses 

requirements to disclose chemicals that do not appear on Material 

Safety Data Sheets? 

Response: The FracFocus template has always been capable of capturing 

MSDS and Non-MSDS chemicals. However, in the new xml schema of 

FracFocus 2.0 these chemicals are divided in the data entry form to make 

it easier for the data entry operator to split them. They are also split on 

the final disclosure pdf. 

f. Some states require a well operator or service company to report the 

type of base fluid used in a fracturing job if it does not use water. In 

Texas, for example, the regulations state that an operator has to 

disclose "the total volume of water used in the hydraulic fracturing 

treatment(s) of the well or the type and total volume of the base fluid 

used in the hydraulic fracturing treatment(s). if something other than 

water." How has FracFocus modified its template disclosure form to 

facilitate operator compliance with requirements to disclose the type 

and volume of any non-water base fluid used? 

Response: The FracFocus 2.0 System (now in use) includes fields for 

non-water base material types and volumes. 

g. If a state requires an operator to disclose an aspect of the fracturing 

fluid or process that is not on the FracFocus disclosure form, such 

as the length of a fracture, how does the operator include that 

required information on the disclosure form? 

Response: FracFocus is a chemical disclosure system. Aspects of 

hydraulic fracturing such as fracture length, zones fractured, depths of 

fracturing, pressures used, etc. that are required to be reported to the 

state must still be reported on each state's well completion forms. 

FracFocus was never intended to capture "aU" aspects of a hydraulic 

fracturing job. 

6. Does the FracFocus disclosure form allow an operator to enter Chemical 

Abstract Service (CAS) numbers that do not exist or are inaccurate? 

Response: Yes. While the system will warn the user that a CAS number does 

not appear to be in the standard format, it does not prevent the user from 

entering an inaccurate or non- existent CAS number. NOTE: Operators cannot 

change the CAS number reported to them by their service-company or chemical 

provider. To do otherwise might result in the reporting of an incorrect chemical, 

and could expose the company to legal ramifications. Therefore, if an erroneous 
141 


79850.095

The Role of the State in Protecting the Environment Under Current Law 

Additional Questions with Responses 

Page 13 

number is reported to the operator by the service company or chemical provider, 

the operator is obligated to report it in the exact manner it is reported to them 

without alteration. 

7. What is IOGCC or FracFocus doing to improve the (a) accuracy and (b) 

completeness of the data it receives from operators? 

Response: The current FracFocus 2.0 system utilizes a number of data validation 

algorithms to evaluate the entries made in fields and to notify the user of errors 

and warnings for inaccurate or incomplete information. These include such items 

as dates, coordinate locations, volumes, state and county auto-fills from API field, 

and other checks. 

8. What does IOGCC or FracFocus do to substantiate an operator's claim that 

a chemical component constitutes a trade secret or confidential business 

information? 

Response: Because each state has different laws concerning what is acceptable 

as a trade secret or confidential business information, and such laws are subject 

to change or modification, it would not be technically feasible for FracFocus to 

evaluate the validity of such claims. Further it would not be appropriate for 

FracFocus to make a judgment call as to what is and is not confidential under 

individual state laws. This authority rests with the state, not with FracFocus. 

Consequently, FracFocus simply reports the claim and leaves the determination 

of whether or not a claim of confidentiality is appropriate or valid to the regulatory 

authority. 

9. The FracFocus "terms of use" states the following (see 

http://fracfocus.org/terms-of-use): "You are only permitted to use the 

content as expressly authorized by us or the specific content provider. 

Except for a single copy made for personal use only, you may not copy, 

reproduce, modify, republish, upload, post, transmit, or distribute any 

documents or information from this site in any form or by any means 

without prior written permission from us or the specific content provider, 

and you are solely responsible for obtaining permission before reusing any 

copyrighted material that is available on this site. Any unauthorized use of 

the materials appearing on this site may violate copyright, trademark, and 

other applicable laws and could result in criminal or Civil penalties." 

a. If EPA downloaded and analyzed chemical disclosure data posted on 

FracFocus, without obtaining permission from GWPC, IOGCC, or 

FracFocus, is it your position that EPA would be violating the "terms 

of use"? 
142 


79850.096

Page 14 

The Role of the State in Protecting the Environment Under Current Law 

Additional Questions with Responses 

Response: With respect to the contents of the "informational" section of 

the site and the data provided on a strictly voluntary basis the answer is 

technically yes. However, with respect to the data provided for those 

states that require or allow the use of FracFocus as the means of 

regulatory reporting, all data is considered public data and for this 

information the answer would be no. Regardless, it is the policy of 

FracFocus to allow for downloads of all disclosures, whether voluntary or 

required. The only restriction we place on such downloads is that they 

must not be conducted by automated programs (commonly referred to as 

bots) because these programs can cause system resource issues which 

could affect access to the system by other users. (Note: To this effect we 

have facilitated the download of disclosure data for the USEPA). 

b. If a state agency downloaded and analyzed chemical disclosure data 

posted on FracFocus, without obtaining permission from GWPC, 

IOGCC, or FracFocus, is it your position that the state agency would 

be violating the "terms of use"? 

Response: The response to this question is the same as that provided for 

item a. above with the exception to a state accessing the disclosures from 

that state; that would not be a technical violation of the "terms of use" 

regardless of whether or not the state used the FracFocus system for its 

regulatory reporting. 

c. If a non-profit organization downloaded and analyzed 'chemical 

disclosure data posted on FracFocus, without obtaining permission 

from GWPC, IOGCC, or FracFocus, is it your position that the nonprofit organization would be violating the "terms of use"? 

Response: The response to this question is the same as that provided for 

item a. above. 
143 


79850.097

STATEOF 

~ OIL& 

GAS CONSERVATION COMMISSION 

May 1, 2013 

DEPARTMENT OF NATURAL RESOURCES 

John W. Hickenlooper, Governor 

1120 Lincoln 51. Suite 801 

Denver, CO 80203 

Phone: (303) 894-2100 

FAX: (303) 894-2109 

WNW.colorado.gov/cogcc 

Dear Honorable John Shimkus: 

My responses to follow-up questions from testimony I gave before the Subcommittee 

on Environment and the Economy at the February 15, 2013 hearing entitled "The 

Role of the States in Protecting the Environment Under Current Law" are attached. 

I apologize for the delay in providing these responses. I sincerely appreciate the 

opportunity to testify before the Committee on behalf of both the Groundwater 

Protection Council and the Colorado Oil and Gas Conservation Commission. Some 

of my responses reflect the dual nature of my representation before the 

Subcommittee. 

Sincerely, 

Matthew Lepore 

Director 

OEPARTMENi OF" NATURAl RESOURCES. Mike King. Executive Director COGCC COMMISSION: Richard AlWard-John Benton- Thomas L Compton - DeAnn Craig - Tommy HOlton -w. Perry Pearce _ Andrew Spielman - Mike King -Chris Urbina 

COGCC 5T AFF- Matt lepore. DIrector - Margaret Ash, Fiela Inspection Manager - Jim Milne, Enwonrnental Manager - Stuart Ellsworth. Engineering Manager 
144 


79850.098

The Honorable John Shimkus 

1. You all emphasize the importance of a risk-based approach to regulation and 

compliance enforcement. How important is local expertise to making the 

risk-based approach effective? In prioritizing which permittees need more 

attention, do you use metrics, personal knowledge of the neighborhood, both, 

or something else? 

Answer: The Colorado Oil and Gas Conservation Commission's ("COGC") 

risk-based approach includes assigning field inspectors to specific regions of the 

state. Inspectors live and work in their assigned regional areas and become more 

familiar with unique characteristics of the region to which they are assigned, 

including the geologic characteristics, waste management requirements, and the oil 

and gas operators working in the region. We also use a computer-based risk 

management tool that prioritizes inspections for certain operations, such as 

cementing the casing, and plugging and abandoning operations, or on site-specific 

characteristics, such as locations that have had recent violations or that have not 

been inspected recently. Location-specific data is available to inspectors in the field 

via laptop computers synchronized with our database. We believe basin-specific, 

localized knowledge coupled with a database driven risk-based approach greatly 

enhance the overall effectiveness and efficiency of our field inspection program. 

2. Do you know of any state that has hydraulic fracturing activities 

occurring in their state with zero regulations regarding those 

activities? 

Answer: While many states have hydraulic fracturing occurring without 

"direct" regulatory language identifying the practice, all producing states have 

regulations designed to protect groundwater during such a process. State well 

? 
145 


79850.099

construction requirements are designed to prevent contamination during all phases 

of the well development process, including hydraulic fracturing. The fact that many 

states do not have a section of their rules title "Hydraulic fracturing operations" 

does not mean they do not regulate the practice through other rules or 

requirements. Colorado, for example, has extensive well construction regulations, 

which require steel casing and cement to be completed below the deepest drinking 

water aquifer to protect the aquifer. Colorado also has a fracture fluid disclosure 

regulation. In addition, Colorado has many regulations related to spill prevention 

and reporting, as well as exploration and production waste management 

requirements, that are intended to minimize and mitigate surface releases of 

hydraulic fracturing and other fluids. 

3. Keeping up with the changing technology of hydraulic fracturing seems 

important. How can an individual state agency ensure that its staff 

expertise is current? 

Answer: The COGCC staff regularly conducts technological training for its 

engineering, inspection, and environmental departments. Industry service 

providers, oil and gas operators, industry and environmental consulting firms, 

continuing education programs at local universities, and other state and federal 

regulatory agencies have provided training to COGCC in the past. Our engineering 

department coordinates most of our training. We also conduct cross-departmental 

training internally. 
146 


79850.100

4. Your testimony talks about a state information exchange. 

a. Could you please elaborate on what this is and why you think it is an 

important effort by the states? 

Answer: The State Oil and Gas Regulatory Exchange (SOGRE) will bring 

state policy and technical staff together on a routine and coordinated schedule to 

share the way they do business, review internal operations, and open up 

opportunities for extrapolating effective practices from one state to another. The 

SOGRE creates a dynamic forum where states can reach out and communicate witl 

one another in an ongoing effort to keep current with rapidly changing technology, 

as well as to share the very best and innovative regulatory procedures from state to 

state. 

The SOGRE will focus first on field operations. This critical area is where 

the states know best how to conduct oversight of exploration and production 

activities. It is in the field where state regulators interact daily with the public and 

the operating companies. The program's initial goals are identifying opportunities 

for new operating procedures, improving communication with the public and 

improving efficiency and effectiveness in regulatory oversight. 

Field Inspectors Education and Certification Program 

We have teamed with highly respected university educators and will develop 

technical training opportunities for oil and gas inspectors and others associated 

with oilfield operations. The goal of this program is to provide a formal certificatior 

process for experienced field inspectors who desire an in-depth understanding of 

4 
147 


79850.101

new and/or emerging technical practices, as well as for persons new to the field who 

need in-depth basic training. 

FracFocus 2.0 

Many states have revised, or are in the process of revising, regulations in 

response to changing technology and public concerns. Subsequently, twelve states 

have led in adopting chemical disclosure requirements, using FracFocus, that 

require companies to disclose chemicals used in the hydraulic fracturing process. A 

new, more searchable version of FracFocus, designed with the public in mind, will 

be fully functional June 1, 2013 and will contain information on over 45,000 

individual fracturing jobs. 

Underground Injection Wells ruIC): Peer Reviews 

These UIC disposal well Peer Reviews will be conducted jointly by the states 

and USEPA, in the respective program offices. They will help states and the 

USEPA continuously improve their programs to protect the environment through 

the UIC program. UIC wells can safely dispose of a variety of fluids, including 

produced water which can include water returned from the hydraulic fracturing of 

wells. Conducting peer-to-peer reviews of this critical environmental protection 

program will help ensure an extra level of environmental oversight for the public. 

Science and Technology Transfer 

This effort will focus on the emerging technology from pure and applied 

research projects being done through the US Department of Energy, National Labs, 

Universities, and other institutions. Opportunities will be provided for researchers 
148 


79850.102

to communicate with states on how the application of their work might improve 

environmental protection and regulatory oversight. 

b. Is this a new initiative? 

Answer: Information sharing among states is not new, but the current State 

Oil and Gas Regulatory Exchange (SOGRE) is a revitalized effort to formalize the 

information exchange. 

c. How does it help states evaluate their injection well programs? 

Answer: See above. 

d. Who is involved in the process? 

Answer: See above. 

e. What is the significance of this program compared to other audit 

programs? 

Answer: Audit programs tend to be prescriptive and frequently do not 

address new technologies and developing trends. Oil and gas drilling and 

development are constantly evolving, and new processes and procedures are 

deployed continuously. An information exchange like SOGRE can be flexible and 

adaptive, to help regulators keep up with emerging technologies and related 

regulatory challenges. 

f. Is this similar to the new Underground Injection Control Peer Review 

Program? 

Answer: The VIC Peer Review Program is one part of the SOGRE. 

6 
149 


79850.103

5. Question. Some are concerned about first responders being able to know 

what chemicals fracturing workers have been exposed to in case of an 

emergency. 

a. Does FracFocus address this concern? 

Answer: To the extent this question specifically asks about chemicals 

"fracturing workers have been exposed to in case of an emergency" FracFocus may 

not address the concern due to the lag in time between conducting a fracturing job 

and reporting the fracture fluid chemicals to FracFocus. First responders would 

have access to Material Safety Data Sheets ("MSDS") for chemicals on-site as 

required under federal Occupational Safety and Health Administration regulations. 

FracFocus was not intended or designed to replace MSDS requirements. 

b. Do some states provide a way for first responders to get information that 

includes confidential business information? 

Answer: In Colorado under COGCC Rules the specific identity and amount of 

any fracturing chemicals used, including those claimed to be trade-secrets or 

confidential business information, must be disclosed immediately in a medical 

emergency upon verbal request by a health professional, which includes emergency 

medical technicians, if the information is necessary for emergency treatment. 

6. Question: How do you make sure a site in your state is geologically suitable 

for hydraulic fracturing? 

Answer: Oil and gas exploration, development and production have been 

taking place in Colorado for more than 100 years, in many different and diverse 

basins across the state. Hydraulic fracturing has been taking place for at least 50 

7 
150 


79850.104

years in Colorado. Between the COGCC and the Colorado Geological Survey, we 

have vast repositories of information about the state's geology. For example, the 

COGCC has well log data showing the lithology of the bore holes, for thousands of 

wells. In addition, we have a well-developed understanding of the location and 

depths of major aquifers in the state. In most parts of the state, target formations 

for oil and gas operations are separated from drinking water aquifers by several 

thousand feet. Finally, our engineering staff reviews each proposed oil and gas 

location and permit to drill with respect to known particular geologic characteristics 

of the region to determine whether any special conditions should be imposed on 

drilling or fracturing operations at the location. 

7. Question: Is it clear that hydraulic fracturing occurs in diverse areas, with 

diverse geography and geology? Do you believe a federal, one size fits all 

standard is craft-able or useful? 

Answer: Colorado has several diverse oil and gas producing basins, including 

coal bed methane, conventional reservoirs, and unconventional shale formations. 

The geography and geology varies dramatically in of these basins. We do not 

believe one-size-fits-all federal standard governing hydraulic fracturing is craft-able 

or necessary. 

8. Question: What type of data quality assurance does FracFocus employee? 

How can the public be assured of the accuracy, completeness, and timeliness 

of the information on the FracFocus website? 

Answer: COGCC has monitored the timeliness of reporting, and failures to 

report, since shortly after chemical disclosures became required under our Rules. 

FracFocus supplies a monthly report that identifies the well, the stimulation date, 

8 
151 


79850.105

and the date the required report was submitted. COGCC uses this information to 

check reporting compliance. The upgrade to FracFocus Version 2 will enhance 

quality control features such as spelling, chemical name and CAS number 

alignment, and calculation of the total volume of fluids and chemicals reported. 

The Honorable Robert E. Latta 

1. Can you discuss some of the positive economic impacts that the industry is 

having on your area? 

Answer: In 2010, the oil and gas industry in Colorado directly employed 

over 40,000 people and supported over 107,000 jobs in the state. The industry 

provided $6.5 billion in total labor income and $31 billion in economic output 

annually. The total assessed values for taxable Oil and Gas property in 2010 was 

$6.25 billion or 5.63% ofthe state total. At $72,373, average wages in 2010 were 

51 % higher for workers in the oil and gas industry compared to all industries in the 

state. Additionally, in 2008 while the state has been gripped by recession, the 

industry was one of a few that experienced upward employment cost pressures, with 

average wages increasing over 2009. 

a. What role do you see further advances in technology having on the continued 

success of this industry? 

Answer: Technological improvements hold the promise to continue 

minimizing or eliminating environmental impacts associated with hydraulic 

fracturing, which will lead to greater public acceptance and removal of certain 

barriers to operations. Recent advances in development of more environmentally 

friendly fracture fluids is one example. A cottage industry is emerging around 

9 
152 


79850.106

reclaiming and reusing flowback fluid and produced water, which means lower 

demands for fresh water and, again, greater public acceptance of the process. 

Advances in vapor recovery and reduce air emissions are on the horizon. Continued 

technological advances in drilling technology likely will lead to greater success with 

longer wellbore lateral lengths in some shale formations, resulting in lower surface 

impacts. All of these advances will contribute to the continued success of the 

industry. 

2. Can you discuss some measures your state has taken to ensure hydraulic 

fracturing is done in an environmentally safe manner? 

Answer: In December 2011 Colorado adopted what was then considered the 

nation's most comprehensive and progressive hydraulic fracture fluid chemical 

disclosure rule. Colorado's disclosure rule set the standard for the rest of the 

country, and has since been emulated by multiple states and the Federal Bureau of 

Land Management. In 2013, Colorado adopted new rules governing groundwater 

monitoring around new oil and gas wells, and became the first state in the nation to 

require post-drilling water samples to be taken near newly completed wells. In 

addition, Colorado adopted a series of new rules governing best management 

practices for oil and gas operations, information to be provided to nearby residents 

and local governments prior to conducting drilling operations, and required 

minimum distances between oil and gas locations and residences and other occupied 

buildings. Like Ohio, Colorado is proud of its regulatory regime, which we believe 

to be one of the most progressive, yet balanced, in the nation. 

10 
153 


79850.107

The Honorable Paul Tonko 

1.a. How are these cumulative impacts of oil and gas production handled 

within your state's regulatory program? 

Answer: Colorado has experienced solid, but not exponential, growth in oil 

and gas drilling in recent years. Depressed natural gas prices have resulting in a 

decrease in drilling activity in Colorado's gas producing basins. 

The majority of recent drilling and associated hydraulic fracturing activity is 

taking place in the Wattenberg Field in north· central Colorado. This Field has been 

a prolific producer for more than 30 years. With respect to regulating potential 

cumulative impacts of increased drilling and stimulation, COGCC regulates 

environmental impacts including wildlife habitat (1200'series rules), well site 

reclamation (lOOO'series rules) and stormwater management requirements. All of 

these Rules mitigate potential cumulative effects of oil and gas operations. 

In addition, the COGCC recently provided funding to study air emissions 

associated with drilling and completion in the Wattenberg field. The study will 

examine emissions and dispersion of air contaminants from specific drilling and 

completion activities. In addition, the Colorado Department of Public Health and 

Environment has begun a rule making process intended to strengthen emi~sion 

requirements for oil and gas operations in the state. In the current legislative 

session, the COGCC is supporting a bill that would facilitate recovery of gas vapors 

from condensate tanks and allow the recovered gas to be sold. Other proposed 

legislation supported by COGCC would expedite issuance of required air permits if 

the operator agrees to enhance emission controls. 

II 
154 


79850.108

Lb. What provisions does your state have (e.g. taxes, fees) to ensure that the 

costs of impacts to public resources and for additional infrastructure to 

support oil and gas production are covered by the oil and gas industry? 

Answer: In Colorado, oil and gas producers may local property taxes, which 

county governments can use to build, repair or maintain roads and other 

infrastructure. Operators also pay a severance tax, a portion of which is returned to 

local governments. 

2.a. Does your state consider the market price of gas in your permitting 

process - permitting fewer wells when the price is lower and increasing them 

when the price improves to ensure the state maximizes its return from 

hosting the expanding gas production? 

Answer: The market price for gas is not a consideration in Colorado's 

permitting process. 

The Honorable Henry A. Waxman 

1. What, if any, requirements does your Department impose through 

regulations to ensure that drilling mud and associated wastes from the 

exploration and production of oil and gas are properly disposed? 

Answer: The COGCC has an entire series of regulations to address 

Exploration and Production Waste Management, including treatment, storage and 

disposal requirements, as well as spill reporting and remediation requirements. 

The preface to this series of regulations states: 

The rules and regulations of this series establish the permitting, 

construction, operating and closure requirements for pits, methods of E&P waste 

management, procedures for spill/release response and reporting, and sampling and 

analysis for remediation activities. These regulations are in 2-CCR 404-1,900 

series. 

12 
155 


79850.109

2. What, if any, authority or ability does your Deparment have to address the 

interstate movement of drilling mud and other associated wastes and to 

track such wastes entering or leaving the state? 

Answer: COGCC Rule 907.b., Waste Transportation, addresses interstate 

transport of exploration and production waste as follows: 

907.b. Waste transportation. 

(1) E&P waste, when transported off-site within Colorado for treatment or 

disposal, shall be transported to facilities authorized by the Director or waste 

disposal facilities approved to receive E&P waste by the Colorado 

Department of Public Health and Environment. When transported to 

facilities outside of Colorado for treatment or disposal, E&P waste shall be 

transported to facilities authorized and permitted by the appropriate 

regulatory agency in the receiving state. (emphasis supplied). 

(2) Waste generator requirements. Generators of E&P waste that is 

transported off-site shall maintain, for not less than five (5) years, copies of 

each invoice, bill, or ticket and such other records as necessary to document 

the following requirements A through F: 

A. The date of the transport: 

B. The identity of the waste generator: 

C. The identity ofthe waste transporter: 

D. The location of the waste pickup site: 

E. The type and volume of waste: and 

F. The name and location of the treatment or disposal site. 

Such records shall be signed by the transporter, made available for inspection 

by the Director during normal business hours, and copies thereof shall be 

furnished to the Director upon request. 

3. How many investigators are employed by your Department to identify and 

investigate illegal dumping of these wastes within the state, and ameliorate 

the potential risks posed by any such dumping? 

Answer: COGCC currently has a primary field operations staff that includes 

both field inspectors and environmental protection specialist who inspect oil and gas 

locations, and respond to spills and releases of exploration and production wastes. 

There are 17 inspectors and 12 environmental protection specialists. The General 

13 
156 


79850.110

Assembly has proposed increasing the COGCC staff by 19 full-time employees this 

fiscal year. A majority of those new FTE would be inspectors and environmental 

protection specialists. 

The Honorable Henry A. Waxman and The Honorable Diana DeGette 

1. Question: Does the IOGCC provide technical assistance to reporting 

companies who have questions about how to complete the FracFocus form or 

what to disclose on the form? 

Answer: Technical assistance to companies is provided by the Ground Water 

Protection Council (GWPC) and the GWPC contractor. With respect to what to 

disclose on the form most of these questions are referred to the individual states 

because each state may have a different disclosure requirement and it would not be 

proper for FracFocus to provide regulatory guidance to users regarding individual 

state laws and regulations. 

2. Question: Does the IOGCC offer or provide trainings to reporting companies 

on how to submit date to FracFocus, besides the webinar available on the 

FracFocus website: If so, please explain. 

Answer: The GWPC has held numerous webinars and live training events for 

companies, states, and state oil and gas associations. These sessions have been 

designed to provide users with the training needed to access, and utilize the 

FracFocus system to submit disclosures. To date the GWPC has held at least seven 

live training events in Texas, Colorado, and Oklahoma. Additional events are 

scheduled for Pennsylvania. 

14 
157 


79850.111

3. Question: Does the GWPC consider itself to be a "public agency" and 

therefore subject to the disclosure requirements of the federal Freedom of 

Information Act (FOlA)? Does the GWPC consider itself subject to the 

disclosure requirements of the Oklahome Open Records Act? Please explain 

why or why not. 

Answer: The GWPC is a private corporation and does not consider itself to 

be subject to the disclosure requirements of FOIA or similar state open records 

laws. However, GWPC does endeavor to provide non-privileged information to the 

public in response to a request for information. 

4. Question: Colorado's regulations state that if the chemical disclosure 

registry (FracFocus) (a) does not allow the Commission staff and the public to 

search and sort the registry for Colorado information by geographic area 

ingredient, chemical abstract service number, time period, and operator" and 

(b) there is "no reasonable assurance that the registry will allow for such 

searches by a date certain acceptable to the Commission," then operators 

disclosing to FracFocus also must submit the disclosure forms to the 

Commission for appropriate disclosure. 

a. What is FracFocus doing to ensure that FracFocus meets the "search and 

sort" requirements of Colorado's regulations? 

a. Answer: FracFocus has already met the search and sort requirements of 

the Colorado regulations. The current search forms available on 

FracFocus allow for the searches provided for in the Colorado regulations. 

b. Has roGCC or FracFocus staff met with the Colorado Oil and Gas 

Commission to discuss this "search and sort" requirement? Please explain. 

b. Answer: The GWPC has met with representatives of the COGCC and 

discussed the search and sort requirements. Based on these discussions a 

date certain for the availability of these elements was defined and has 

been met. 

15 
158 


79850.112

5. Questions: A number of states direct companies to disclose directly to 

FracFocus or provide companies with the option of disclosing to FracFocus. 

a. For those states that require companies to disclose directly to FracFocus, 

such as North Dakota and Utah, does FracFocus provide the state 

agencies with the chemical disclosure forms once received? If no, please 

explain. 

a. Answer: The FracFocus system makes the disclosure forms available to 

everyone, including state agencies. 

b. For those state that provide companies with the option of disclosing to 

FracFocus, such as Montana, does FraeFocus provide the state agencies 

with the chemical disclosure forms once received? If no, please explain. 

b. Answer: The FracFocus system makes the disclosure forms available to 

everyone, including state agencies. 

e. Does FracFocus notify the relevant state agency when a company has 

submitted a disclosure form for a well? 

c. Answer: The system provides periodic reports of disclosures reported to 

FracFocus to the states. This includes all disclosures reported but is not done on a 

well by well basis at the request of the states. 

d. Does FraeFocus tailor its disclosure form template for each state? If no, 

please explain why. If yes, please describe how FraeFocus tailors the 

form? 

d. Answer: The FracFocus template is designed to be flexible enough to 

meet the needs of all states. There is no need to tailor the form differently for each 

state as it can capture a wide range of information based on individual state 

requirements. 

16 
159 


79850.113

e. Some states require operators to disclose to FracFocus all chemical 

components in a fracturing fluid, not just chemicals subject to 29 CFR 

1910.1200U) and Appendix D. How has FracFocus modified its template 

disclosure form to facilitate operator compliance with requirements to 

disclose chemicals that do not appear on Material Safety Data Sheets? 

e. Answer: The FracFocus template has always been capable of capturing 

MSDS and Non·MSDS chemicals. However, in the new xml schema of FracFocus 

2.0 these chemicals are divided in the data entry form to make it easier for the data 

entry operator to split them. They are also split on the final disclosure pdf. 

f. Some states require a well operator or service company to report the type 

of base fluid used in a fracturing job if it does not use water. In Texas, for 

example, the regulations state than an operator has to disclose "the total 

volume of water used in the hydraulic fracturing treatment(s) of the well 

or the type and total volume of the base fluid used in the hydraulic 

fracturing treatment(s), if something other than water." How has 

FracFocus modified its template disclosure form to facilitate operator 

compliance with requirements to disclose the type and volume of any nonwater based fluid used? 

f. Answer: The FracFocus 2. System (now in use) includes fields for nonwater base material types and volumes. 

g. If a state requires an operator to disclose an aspect of the fracturing fluid 

or process that is not on the FracFocus disclosure form, such as the length 

of the fracture, how does the operator include that required information 

on the disclosure form? 

g. Answer: FracFocus is a chemical disclosure system. Aspects of hydraulic 

fracturing such as fracture length, zones fractured, depths of fracturing, pressures 

used etc., that are required to be reported to the state must still be reported on each 

17 
160 


79850.114

state's well completion forms. FracFocus was never intended to capture "all" aspects 

of a hydraulic fracturing job. 

6. Question: Does the FracFocus disclosure form allow an operator to enter 

Chemical Abstract Service (CAS) numbers that do not exist or are 

inaccurate? 

Answer, Yes. While the system will warn the user that a CAS number does 

not appear to be in the standard format, it does not prevent the user from entering 

an inaccurate or non' existent CAS number. NOTE: Operators cannot change the 

CAS number reported to them by their service-company or chemical provider. To do 

otherwise might result in the reporting of an incorrect chemical, and could expose 

the company to legal ramifications. Therefore, if an erroneous number is reported 

to the operator by the service company or chemical provider, the operator is 

obligated to report it in the exact manner it is reported to them without alteration. 

7. Question: What is IOGCC or FracFocus doing to improve the (accuracy) and 

(b) completeness of the data it receives from operators? 

Answer: The current FracFocus 2.0 system utilizes a number of data 

validation algorithms to evaluate the entries made in fields and to notify the user of 

errors and warnings for inaccurate or incomplete information. These include such 

items as dates; coordinate locations, volumes, state and county auto-fills from API 

field and other checks. 

18 
161 


79850.115

8. Question: What does mGCC or FracFocus do to substantiate an operator's 

claim that a chemical component constitutes a trade secret or confidential 

business information? 

Answer: Because each state has different laws concerning what is acceptable 

as a trade secret or confidential business information, and such laws are subject to 

change or modification, it would not be technically feasible for FracFocus to 

evaluate the validity of such claims. Further it would not be appropriate for 

FracFocus to make a judgment call as to what is and is not confidential under 

individual state laws. This authority rests with the state, not with FracFocus. 

Consequently, FracFocus simply reports the claim and leaves the determination of 

whether or not a claim of confidentiality is appropriate or valid to the regulatory 

authority. 

9. Question: The FracFocus "terms of use" states the following (see 

http://fracfoucs.org/terms-of-use): "You are only permitted to use the content 

as expressly authorized by us or the specific content provider. Except for a 

single copy made for personal use only, you may not copy, reproduce, modify, 

republish, upload, post, transmit, or distribute any documents or information 

from this site in any form or by any means without prior written permission 

from us or the specific content provider, and you are solely responsible for 

obtaining permission before reusing any copyrighted material that is 

available on this site. Any unauthorized use of the materials appearing on 

this site may violate copyright, trademark, and other applicable laws and 

could result in criminal or civil penalties." 

a. If EPA downloaded and analyzed chemical disclosure data posted on 

FracFocus, without obtaining permission from GWPC, IOGCC, or 

FracFocus, is it your position that EPA would be violating the "terms of 

use"? 

a. Answer: With respect to the contents of the "informational" section of the 

site and the data provided on a strictly voluntary basis the answer is technically 

19 
162 


79850.116

yes. However, with respect to the data provided for those states that require or 

allow the use of FracFocus as the means of regulatory reporting, all data is 

considered public data and for this information the answer would be no. 

Regardless, it is the policy of FracFocus to allow for downloads of all disclosures, 

whether voluntary or required. The only restriction we place on such downloads is 

that they must not be conducted by automated programs (Commonly referred to as 

bots) because these programs can cause system resource issues which could affect 

access to the system by other users. (NOTE: To this effect we have facilitated the 

download of disclosure data for the USEPA). 

b. If a state agency downloaded and analyzed chemical disclosure data 

posted on FracFocus, without obtaining permission from GWPC, IOGCC, 

or FracFocus, is it your position that the state agency would be violating 

the "terms of use"? 

b. Answer: The response to this question is the same as that provided for 

item a. above with the exception to a state accessing the disclosures from that state; 

which would not be a technical violation of the "terms of use" regardless of whether 

or not the state used the FracFocus system for its regulatory reporting. 

c. If a non"profit organization downloaded and analyzed chemical disclosure 

data posted on FracFocus, without obtaining permission from GWPC, 

IOGCC, or FracFocus, is it your position that the non-profit organization 

would be violating the "terms of use" 

c. Answer: The response to this question is the same as that provided for 

item a. above. 

20 
163 


79850.117

Questions for and Answers from Sarah Pillsbury 

New Hampshire Drinking Water Administrator & 

President of the Association of State Drinking Water Administrators 

Pursuant to February 15, 2013 Hearing 

of the House Subcommittee on Environment & the Economy 

The Honorable Tohn Shimkus 

1. You devote part of your testimony to talking about the importance of State drinking water program 

officials living and working in the communities served by the programs they administer and how it's 

personal for them. Could you please elaborate for me, perhaps using an example of your own, as to 

why you consider this a plus? 

The reason that it's advantageous for state drinking water program officials to live and 

work in the communities served by their drinking water programs is that they are acutely 

aware of the range of issues confronting their programs and are thus able to tailor their 

programs to meet these challenges. They are very familiar, for instance, with the numbers 

and types of water systems, the capabilities of those systems, and the prevailing political 

and economic climate in which those water systems operate. New Hampshire has 

predominately small (Le., serving less than 500 people) water systems that require our oneon-one assistance in order to shore up their technical, managerial, and financial capacity. 

States are also knowledgeable about any special challenges associated with various parts of 

the state. For instance, in New Hampshire, there is a considerable amount of naturally 

occurring radon in sources of drinking water in some parts of the state. Radon is not the 

subject of a national regulation, but must be addressed at the state level to ensure adequate 

protection for those affected communities. 

2. How much of the work that your member agencies do is strictly part of Federal legal requirements 

under the Safe Drinking Water Act? How would you contrast that with the work your own state ask 

you to do outside of the Federal obligations? What types of activities are your members engaged in 

outside of these Federal efforts? 

As the question rightly implies, states undertake a wide array of activities that are above 

and beyond the Federal minimums. They perform these tasks to ensure that a 

comprehensive state drinking water program, designed to fully protect the health of the 

citizens of the state, is in place. These include activities such as hands on technical 

assistance and training of water systems; source water protection; and outreach to 

customers. As a rough estimate, I might suggest that 60-70% of a state's workload is driven 

by Federal requirements and the remaining 30-40% are state-driven activities. However, the 

number and type of "extra" activities each state takes on varies generally - and, indeed, it 

may vary from year to year; depending upon initiatives underway in any given year at both 
164 


79850.118

2 

the Federal and state levels (e.g., whether or not a new Federal rule has recently been 

promulgated). 

3. Your testimony talks about other partnerships for training and technical assistance. Could you 

please discuss these. What are you trying to obtain from them and how do they help your members 

with their mission? 

State and regional affiliates of organizations such as the National Rural Water Association 

(NRWA), the Rural Community Assistance Partnership (RCAP), the American Water Works 

Association (A WW A), and the network of EPA-created Technical Assistance Centers & 

Environmental Finance Centers are all key partners in providing technical assistance and 

training for water systems - especially, small water systems. These organizations extend th~ 

reach and breadth of state drinking water programs. They perform tasks that are beyond 

the capability and expertise of state drinking water programs or which state drinking water 

program personnel may not have the time or resources to perform. In partnering with these 

organizations, states seek to match the technical assistance and training needs of water 

systems with the most capable provider of that service. Activities could include tasks such 

as training town councils to ensure that they understand the value of their water system and 

the needs for their full support of the system; training on conducing energy audits at water 

trea tment systems; training on drinking water system resiliency and preparedness; and 

training on operating a treatment facility to remove a particular contaminant (or 

contaminant group). It is important to note that, while these partnerships are important to 

the success of state drinking water programs, their effectiveness varies depending on the 

willingness of each partner to focus on shared priorities and communicate results 

4. You testify that state drinking water programs are challenged by contaminated source waters and 

"emerging contaminants." Could you please elaborate on this point and states themselves are doing 

to tackle this problem? 

Both ground and surface water sources of drinking water across the country can be and 

often are contaminated with a host of contaminants from municipal and industrial activities. 

Although other statutes (e.g., CWA, TSCA, RCRA, CERCLA) impose some controls over 

these activities, contamination of sources of drinking water may still occur. Some of the 

contaminants are fairly readily identified and removed. Others (e.g., perchlorate, MTBE, 

perfluorinated compounds, pharmaceutical and personal care products) are hard to detect 

and even more challenging to remove. Those contaminants for which relatively little is 

known are sometimes referred to as "emerging." The pace of Federal drinking water 

regulatory development does not always keep pace with the proliferation of these 

contaminants. Moreover, not all contaminants require a national regulation - they may only 

be of consequence in a particular state or part of the country. States must still take actions 

that afford adequate protection to the citizens of their states - irrespective of what may be 

happening at the Federal level. The first and typically most effective way to deal with such 

contaminants is prevention - i.e., keeping them out of or minimizing their presence in 
165 


79850.119

3 

sources of drinking water. Thus, states actively work with a variety of partners in order to 

leverage other tools and programs to this end. Many states also have their own state 

regulations for contaminants for which Federal regulations have not yet been established. 

All of the above-described activities are resource-demanding and are why I argued, in my 

testimony, for more appropriate levels of Federal support for state drinking water 

programs. 

5. Your testimony briefly mentions hydraulic fracturing. What type of coordination exists between 

ASDWA and GWPC members to promote better understanding of produced waters? 

State drinking water programs are typically in a different part of a state government from 

the agency that has purview over oil and gas extraction activities in a state. Thus, it is 

incumbent on state drinking water administrators and their staffs to fully coordinate with 

their state Oil & Gas and Underground Injection Control program counterparts (i.e., GWPC 

and IOGCC members). State drinking water programs would typically provide - to their 

sister agencies -- information about ground and surface water intakes of public water 

systems as well as available source water monitoring data (including trend data). State 

drinking water program staff, in tum, would typically receive -- from their colleagues 

involved in permitting oil and gas extraction activities -- information about types and 

location of extraction wells as well as characteristics and quantities of produced waters. We 

believe communication and coordination among state agencies is critical, as the question 

implies. 

The Honorable HenlY A. Waxman 

Congressman Waxman has asked a number of questions regarding my Bureau's approach to 

dealing with coal ash and drilling muds (and associated wastes). The regulatory activities in 

question are not under the purview of my program, nor was this subject part of my testimony. 

I am thus not able to respond to the questions posed. We believe these questions are more 

appropriately directed to the witnesses from the Environmental Council of the States (ECOS) 

and the Association of State and Territorial Solid Waste Management Officials (ASTSWMO). 

The Honorable Ianice D. Schakowski 

1. Would requiring pre- and post-drilling testing Of groundwater help you identify and address 

potential sources of drinking water contamination in New Hampshire? 

Yes, we support the approach of performing pre- and post- drilling testing. 

2. Could pre- and past-drilling testing help administrators in all states where fracking occurs identify 

and address potential sources of drinking water contamination? 
166 


79850.120

4 

Yes; but while pre/post testing can be a useful tool, it should be left to individual state 

agencies to decide, on an "as needed" basis, whether to require such testing. Issues that 

need to be resolved, at a state level, in terms of specifying such testing are: how deep to 

drill the test wells, where to site such wells, and which constituents to test for. 
167 


79850.121

Association of State and Territorial 

A!iT!iWMD 

The Honorable John Shimkus, Chairman 

Subcommittee on Environment and the Economy 

United States House of Representatives 

Committee on Energy and Commerce 

2125 Rayburn House Office Building 

Washington, DC 20515-6115 

Dear Chairman Shimkus: 

444 North Capitol Street, NW., Suite 315 

Washington, DC 20001 

tel: (202) 624-5828 fax: (202) 624-7875 

www.astswmo.org 

March 31, 2013 

Thank you for allowing the Association of State and Territorial Solid Waste Management 

Officials to testifY at the hearing on "The Role of the States in Protecting the Environment Under 

Current Law". The Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO) is an association representing the waste management and remediation programs of 

the fifty States, five Territories and the District of Columbia (States). Our membership includes 

State program experts with individual responsibility for the regulation or management of wastes 

and hazardous substances, including remediation, tanks, materials management and 

environmental sustainability programs. 

We respectfully offer the attached response pursuant to the request by the Subcommittee for 

additional written responses to members' questions. Please do not hesitate to contact me should 

you need additional information. 

Sjucerely, 
168 


79850.122

The Role of States in Protecting the Environment Under Current Law 

Written Responses to Questions 

The Honorable John Shimkus 

1. You mentioned in your written testimony that the Virginia Department of 

Environmental Quality (DEQ) successfully brought parties together and using only 

the authorities ofthe Virginia Voluntary Cleanup Program, was able to successfully 

redevelop a blighted area in Roanoke, VA. 

a. Would you say that your Agency's local expertise and knowledge of the area and 

the stakeholders helped you successfully complete this complex cleanup. 

Virginia's knowledge oflocal stakeholders' needs and area wide environmental concerns 

played a significant role in the success of the project. The South Jeffirson 

Redevelopment Area located in Roanoke consisted mainly of abandoned and 

underutilized property which has been remediated by completion of enro IIment of six 

different sites in Virginia DEQ's Voluntary Remediation Program. The Carilion 

Riverside Clinic and the Virginia Tech Carilion School of Medicine are among the 

redeveloped properties now valued at over $200 million. Curtis Mills, Executive Vice 

President of the Carilion Clinic, applauded this private-public working relationship, when 

he said, "We were impressed by the practical approach the DEQ (Virginia's Department 

of Environmental Quality) took in partnering with us on the cleanup of one of the worst 

areas in Roanoke. We couldn't be more pleased with the results."] It is likely that little 

progress would have been made on this remediation if this property had been the subject 

of the traditional CERCLA project using federal authorities because of the prolonged 

level of uncertainty regarding legal liabilities and remediation plans associated with 

projects subject to CERCLA. An often overlooked, but important point is that economic 

development projects are dependent upon the time critical actions of environmental 

regulators and delay and legal uncertainty can have adverse impacts on the viability and 

success of these projects. 

b. Do you think that States may be better suited to deal with some ofthese 

complicated cleanup sites under state voluntary cleanup programs and state 

Brownfields programs than EPA is under fed~rallaw? 

Yes, when there are viable parties that have an economic interest in redeveloping 

Brownfields, it makes sense to defer to the states' voluntary cleanup programs to take the 

lead in overseeing remediation of property that ensures risk management decisions are 

commensurate with the future planned use of the property. This is not meant to imply 

that the use of federal authority under RCRA and CERCLA is not an appropriate 

approach to address contaminated sites. However, it should not preclude the use of state 

authorities where appropriate. 

1 http://www.epa.gov/reg3hwmd/bf-lr/newsletter/2010-Winter/03-scrapstoscrubs.html 
169 


79850.123

The Role of States in Protecting the Environment Under Current Law 

Written Responses to Questions 

Page Two 

c. Can States achieve cleanups faster and more efficiently than EPA aud why (or 

why not)? 

In certain circumstances, States can achieve cleanups faster and more efficiently than 

EPA. Although not all states operate a federal equivalent Superfund program, having 

states take a lead role in overseeing non-fund lead sites involving a potentially 

responsible party (PRP), can be more efficient as state regulators are closer to the issues 

and recognize local environmental conditions early in the process that may impact future 

risk management decisions. The same can be said for cleanups following the RCRA 

Corrective Action process. As illustrated in the above responses, neither RCRA nor 

CERCLA should preclude states from using voluntary cleanup programs to address the 

remediation of poIlution on properties that have viable redevelopment opportunities. 

d. What changes to current federal law would make the cleanup process quicker 

and more efficient? 

One suggested change relates to RCRA Corrective Action authority. Under certain 

circumstances, a responsible party should be allowed to enroll in a state's voluntary 

cleanup program in lieu of using RCRA to advance remediation, deferring cleanup 

decisions and targeted remedial goals to such programs when appropriate. Such 

deferment could also contemplate the use ofa state's voluntary remediation program's 

administrative process in lieu ofthe federal process under RCRA. Operating under the 

state program when a viable and motivated party is able to facilitate a more cost efficient 

cleanup creates a win-win situation that protects human health and the environment while 

facilitating faster remediation. 

2. If EPA has authority to assume control ofa state permit program when the permit 

program isn't meeting minimum federal requirements, would you consider that 

backstop authority for EPA? 

Yes. With that authority, if a state was not meeting minimum requirements, EPA could 

assume control and this provides backstop authority. 

3. Your boss, Governor McDonnell, wrote to us two years ago in support of the coal 

ash bill, H.R. 2273, which sets a minimum federal standard for regulating coal ash 

but gives States the authority to develop and implement their own permit programs 

based on the needs ofthe State. Governor McDonnell noted that Virginia's 

program would need to make some improvements in order to meet the requirements 

of our bill and called the bill a "sensible approach for the management ofCCR." 

Since that time the Senate has introduced legislation, that we support, which 

provides additional pollution prevention focused initiatives. 
170 


79850.124

The Role of States in Protecting the Environment Under Current Law 

Written Responses to Questions 

Page Three 

a. How has EPA's current rulemaking impacted the regulation of coal ash in 

Virginia? 

EPA's current efforts have resulted in uncertainty for Virginia's regulation of coal ash. 

Virginia suspended action to amend its regulation due to the EPA rule making and 

continued efforts to amend the regulation are difficult with the uncertainty regarding 

federal regulation. Virginia stakeholders, including coal ash generators, permitted 

disposal facilities and those beneficially using this material recognize that Virginia's 

regulations should be enhanced. We were working together to develop an efficient yet 

protective CCR program at the time that EPA began its proposed rulemaking. The 

longer this uncertainty exists, the more difficult it becomes to continue the positive 

momentum and consensus on changes to Virginia's regulations. 

b. Does Virginia still support the approach in the bills based on the fact that States 

are in a better position to regulate coal ash? 

Yes. Virginia continues to support this approach. Virginia believes that allowing states 

to implement their own programs provides the best approach to regulating coal ash. It 

also provides the best approach for addressing individual states' circumstances and 

resources. 

4. In June 2010, EPA proposed a rule for coal combustion residuals with multiple 

regulatory scenarios. Now, almost 3 years later EPA is not close to picking one. 

What has Virginia done in the meantime? How do you and other States know what 

direction to take with making improvements to your coal ash programs? 

Virginia has not moved forward with any regulation revision due to the uncertainty 

of EPA action on coal ash. Virginia and other states cannot be sure of what 

direction to take given that any EPA action may supersede or conflict with state action. 

The Honorable Henry Waxman 

1. What, if any, requirements does your state apply to drilling mud and other wastes 

from the exploration and production of oil and gas when generated, stored, 

transported, or disposed of within the state? 

The handling and disposal of these in-state generated wastes are regulated by the Virginia 

Department of Mines, Minerals, and Energy. In Virginia, requirements for the handling, 

management, and disposal of these wastes are set forth in the Virginia Gas and Oil Act 

as weIJ as the Virginia Gas and Oil Regulations, which are found in 4 Virginia 

Administrative Code (V AC) 25-150 et. seq. For example, a site must submit a plan 
171 


79850.125

The Role of States in Protecting the Environment Under Current Law 

Written Responses to Questions 

Page Four 

for approval addressing permanent disposal of fluids from an extraction well pursuant to 

4 VAC 25-150-420. All disposal of drill cuttings and solids must be addressed in an 

approved operations plan pursuant to 4 VAC 25-150-430. 

2. What, if any, authority or ability does your Department have to address the 

interstate movement of drilling mud and other associated wastes and to track such 

wastes entering the state? 

All such wastes entering the state are subject to Virginia's Solid Waste Management Act. 

Federal courts have determined that the interstate movement of solid waste shall not be 

restricted under the Interstate Commerce Clause. Once these wastes enter Virginia, they 

are subject to proper management and disposal which includes reporting under the 

Commonwealth's Solid Waste Information Assessment reporting as enumerated in 

9VAC21-S1-S0. 

3. What, if any, requirements does your Department impose to ensure that drilling 

mud and associated wastes from the exploration and production of oil and gas that 

enter the state are properly disposed? 

As discussed in response to Question #2, wastes associated from oil and gas exploration 

and production are considered solid wastes. As such, they must be managed and 

disposed of by a facility permitted by the Virginia Department of Environmental Quality. 

4. What, if any, requirements does your state apply to coal ash when generated, stored, 

transported, or disposed of within the state? 

Virginia considers coal ash to be a solid waste, and thus it must be managed and disposed 

of as such. Current disposal design criteria require coal ash disposal facilities to meet the 

state's industrial landfill criteria which includes performance based liner systems, 

groundwater monitoring and post closure care. Virginia also has separate regulatory 

requirements for the safe beneficial reuse of coal ash; both as an ingredient in a material 

and for use in land based fill projects. 

5. What, if any, authority or ability does your Department have to address the 

interstate movement of coal ash and to track coal ash entering the state? 

Coal ash is a solid waste. Please refer to the response to Question #2. 
172 


79850.126

The Role of States in Protecting the Environment Under Current Law 

Written Responses to Questions 

Page Five 

6. What, if any, requirements does your Departmeut impose to ensure that coal ash 

that enters the state is properly disposed? 

While the Commonwealth of Virginia cannot prohibit the transportation of coal ash into 

the state, we do maintain authority to regulate this material as a solid waste. The 

management and disposal of solid waste is subject to the Virginia Solid Waste 

Management Act. Please refer to the response to Question #4 regarding specific 

management requirements 

7. How many investigators are employed by your Department to identify and 

investigate illegal dumping of drilling mud, other wastes from the exploration and 

production of oil and gas, and coal ash within the state and ameliorate the potential 

risks posed by any such dumping? 

The Department's Pollution Response Program (PReP) is a statewide program to receive 

complaints from the public regarding potential illegal dumping or discharges that pose a 

threat to human health and the environment. Staff in each ofDEQ's six regional offices 

staff this program and as necessary refer complaints to inspectors in the Department's 

solid and hazardous waste programs for further investigation. Statewide, the Department 

employs approximately 30 staff as inspectors. 
173 


79850.127

Responses to Questions for the Record 

Teresa Marks, Director of the Arkansas Department of Environmental Quality 

The Honorable Jobn Shimkus 

1. If Congress includes in legislation, specific national standards, in other words, 

minimum requirements that a State program must meet, do you think it is necessary 

for EPA to first issue federal regulations in order for states to implement protective 

programs? 

No. 

2. Critics of the approach taken in H.R. 2273 and S._ 3512 from the last Congressallowing States to be in the driver's seat with respect to creating a coal ash regulatory 

program that meets a minimum federal standard -argue that without a greater role for 

EPA, in particular rulemaking authority and concurrent enforcement authority, that 

there won't be a consistent level of protection across the States. Do you agree? Why 

or why not? 

EPA will continue to oversee a state's implementation ofa coal ash program, with the 

ultimate authority to withdraw the program if a state fails to implement it. States can ask 

for EPA's enforcement assistance, which means EPA can be involved in enforcement. 

3. The chart in your written testimony indicates that EPA is increasing its regulatory 

output, which then increases the amount of work States have to do. Are their times 

when the rules coming out of EPA make it harder for your State members to manage 

their programs? 

Yes, although it is rare for states collectively to oppose the rules. Our primary concern is 

often loss of flexibility and increased costs of implementation, although there may be 

other reasons from time to time. 

The Honorable Henry A. Waxman 

Drilling mud and other wastes from the exploration and production of oil and gas have 

been exempt from the requirements of the Resource Conservation and Recovery Act 

since July 1988, but now include recovered hydraulic fracturing fluid with potentially 

dangerous constituents. Democratic members of the Energy and Commerce Committee 

released .a report in April, 2011 finding that the top hydraulic fracturing companies had 

injected fluid containing 29 chemicals that are known or possible human carcinogens, as 

1 
174 


79850.128

well as other contaminants regulated under the Clean Air Act and the Safe Drinking 

Water Act. 

Despite this, according to the U.S. Department of Transportation's Pipeline and 

Hazardous Materials Safety Administration, shippers and transporters of these materials 

do not have to comply with any Federal hazardous materials safety regulations. And, as 

mentioned above, such mud and other wastes are also exempt from requirements under 

the Resource Conservation and Recovery Act. This means that these hazardous materials 

are not required to be labeled as hazardous, contained and transported in accordance with 

Federal hazardous materials regulations, or included in shipping manifests to track the 

material, prevent diversion, and ensure proper handling by emergency response personnel 

in accidents and incidents. 

The risks of this approach are illustrated by a recent event in Youngstown, Ohio, where 

authorities were alerted to illegal dumping of drilling fluid into the Mahoning River on 

January 31, 2013, by an anonymous tip. According to Federal investigators, the dumping 

went on for several months before the tip was received. Even after the dumping was 

discovered, state officials failed to inform the public and drinking water facilities drawing 

water downstream of the dumping site. Public health and environmental impacts are still 

being assessed. 

Coal ash is also currently exempt from federal requirements under the Resource 

Conservation and Recovery Act and Federal hazardous materials safety regulations, 

despite the presence of hazardous constituents including arsenic, lead, mercury, and 

hexavalent chromium in the ash. On December 22, 2008, a coal ash impoundment in 

Kingston, Tennessee, burst, releasing 5.4 million cubic yards of toxic sludge, blanketing 

the Emory River and the surrounding land, and creating a superfund site that could cost 

up to $1.2 billion to clean up. On August 23, 2005 an ash impoundment at the Martins 

Creek power plant in Allentown, Pennsylvania was breached, releasing over 100 million 

gallons of contaminated water and ash into Oughhoughton Creek and the Delaware River. 

The spill impacted public water supplies in Pennsylvania and New Jersey, elevating 

arsenic levels to 3,000 times the drinking water standard. The cleanup lasted several 

months and cost an estimated $37 million. 

I. What, if any, requirements does your state apply to drilling mud and other wastes from 

the exploration and production of oil and gas when generated, stored, transported, or 

disposed of within the state? 

The State of Arkansas encourages recycling of drilling muds and frac fluids to the extent 

practicable and most, if not all, operators recycle these fluids. The storage, transport, and 

disposal of drilling fluids are covered by various permits or authorizations issued either 

2 
175 


79850.129

by the Arkansas Department of Environmental Quality (ADEQ) or the Arkansas Oil and 

Gas Commission (AOGC). 

The AOGC issues permits for the exploration and/or production wells. ADEQ authorizes 

coverage for pits storing drilling fluids associated with the drilling of oil and gas 

production wells through a permit by rule under APC&EC Regulation No. 34 (copy 

attached). These pits are similarly regulated under AOGC's Rule B-17 (copy attached). 

Disposal of water-based drilling fluids through land application is permitted by ADEQ. 

Subsurface disposal of frac fluids in injection wells is permitted by the AOGC. 

This material, when disposed, is a solid waste, which can be disposed in a Municipal 

Solid Waste Landfill or an Industrial Solid Waste Landfill (designed and permitted for 

the specific material). The material must be non-liquid or solidified before being 

incorporated into the daily waste mass and must be covered with six (6) inches of soil 

cover at the end of each working day or more, as necessary to prevent nuisance 

conditions (odors being a primary concern). There are some reuses for this waste, which 

may be allowable under certain circumstances. 

Exploration and production fluid transportation is not regulated by ADEQ, but is 

regulated by AOGC's Rule E, a copy of which is attached. ADEQ's regulations are 

available at: 

http://www.adeq.state.ar.us/regs/default.htm 

AOGC's regulations are available at the following site: 

http://www.astateogc.ar.us/OnlineDataIFormslRules%20and%20Regulations.pdf 

2. What, if any, authority or ability does your Department have to address the 

interstate movement of drilling mud and other associated wastes and to track such 

wastes entering the state? 

In Arkansas, AOGC regulations prohibit any person from operating an Exploration and 

Production Fluid Transportation System without a permit. Further, transporters of 

exploration and production fluids are required to maintain records of all fluids "received, 

transported delivered or disposed of' and to keep those records in the Arkansas Office of 

the permit holder for three years. (See AOGC Rule E-3, a copy of which is attached.) 

3. What, if any, requirements does your Department impose to ensure that drilling mud 

and associated wastes from the exploration and production of oil and gas that enter the 

state are properly disposed? 

3 
176 


79850.130

See Response to Question 2. 

Although ADEQ does not regulate the transportation ofthese materials, state laws and 

regulations generally prohibit the improper disposal of wastes. It is unlawful for any 

person to operate any solid waste processing or disposal facility or site without a permit 

from ADEQ or to dispose of wastes at any disposal site or facility that is not permitted. 

(Ark. Code Ann. §8-6-205(a).) Further, it is unlawful to cause pollution ofthe waters of 

the state or to place wastes in a location likely to cause pollution of waters of the state. 

(Ark. Code Ann. §8-4-217(a). Both the Arkansas Solid Waste Management Act (Ark. 

Code Ann. § 8-6-201 et seq,) and the Arkansas Water and Air Pollution Control Act (Ark. 

Code Ann. § 8-4-201 et seq.) contain enforcement and penalty provisions. 

Also, AOGC's Rule E-3(i) states that transporters shall only: 

transport [drilling fluids] to a permitted well for re-use ... , a permitted off-site 

temporary storage facility, a permitted surface disposal facility or a permitted injection 

well disposal facility. Exploration and production Fluid shall not be released or 

discharged onto the ground surface or into Waters of the State, unless otherwise 

authorized by [ADEQ]. 

4. What, if any, requirements does your state apply to coal ash when generated, stored, 

transported,or disposed of within the state? 

The State of Arkansas manages coal ash through our Subtitle D Solid Waste program. 

Coal ash in the state may be disposed in a permitted Municipal Subtitle D Landfill or in 

an Industrial Solid Waste Landfill. All Municipal or Industrial Landfills in the state must 

be permitted, and Arkansas' regulation governing solid waste management (Regulation 

22) details specific requirements for facility siting, geologic and geotechnical 

investigations, liner and final cover design standards, operating standards, construction 

quality assurance, groundwater monitoring and corrective action, closure and post 

closure care and financial assurance. These requirements have been in place since 1995. 

Regulation 22 also includes requirements governing the reuse of coal ash. 

5. What, if any, authority or ability does your Department have to address the 

interstate movement of coal ash and to track coal ash entering the state? 

The interstate transportation of coal ash is not regulated by ADEQ. 

6. What, if any, requirements does your Department impose to ensure that coal ash that 

enters the state is properly disposed? 

Although ADEQ does not regulate the transportation of coal ash, as stated in response to 

the question on the transportation of drilling fluids, state laws and regulations generally 

prohibit the improper disposal of wastes. As previously mentioned, it is unlawful for any 

person to operate any solid waste processing or disposal facility or site without a permit 

from ADEQ or to dispose of wastes at any disposal site or facility that is not permitted. 

4 
177 


79850.131

(Ark. Code Ann. §8-6-205(a).) Further, it is unlawful to cause pollution of the waters of 

the state or to place wastes in a location likely to cause pollution of waters of the state. 

(Ark. Code Ann. §8-4-217(a).) Both the Arkansas Solid Waste Management Act (Ark. 

Code Ann. § 8-6-201 et seq,) and the Arkansas Water and Air Pollution Control Act (Ark. 

Code Ann. § 8-4-201 et seq.) contain enforcement and penalty provisions. 

7. If contamination from drilling mud, associated wastes, or coal ash is discovered in a 

source of public drinking water in your state, what information and resources will be 

available to your Bureau to track the source ofthat contamination? 

ADEQ has worked with the Arkansas Department of Health and public water suppliers in 

locating potential environmental sources when elevated levels of hazardous constituents 

appear in the drinking water supply. 

ADEQ may conduct inspections, collect samples, and review existing databases to identify 

potential sources of contamination. ADEQ also may seek information from other agencies 

or the regulated community in order to track the source of any contamination, including, 

for example, information from the licensed transporters maintained by the AOGC. 

Regulation 22 details regulatory requirements for permitted Municipal or Industrial 

Landfills, including requirements for groundwater monitoring and corrective action. As part 

of these requirements, the owner or operator of a disposal site would be required to notify 

appropriate local government officials and all persons who own the land or reside on the 

land that directly overlies any part of the contaminant migration if contaminants have 

migrated off-site ..... (Reg. 22.l205(g).) 

8. How many investigators are employed by your Department to identify and investigate 

illegal dumping of drilling mud, other wastes from the exploration and production of 

oil and gas, and coal ash within the state, and ameliorate the potential risks posed by 

any such dumping? 

The Water Division has five (5) inspectors dedicated to monitoring oil and gas activities. 

In addition, the Water Division has seventeen (17) other inspectors who can also 

evaluate any improper disposal practices associated with oil and gas activities or coal 

ash. The Solid Waste Management Division employs eight (8) inspectors, who are 

responsible for inspecting all permitted disposal facilities and investigating illegal dump 

sites. 

The potential risk associated with the illegal disposal of any solid waste material, 

including but not limited to coal ash and oil gas exploration wastes, will vary 

significantly based on the quantity illegally disposed and the location of the disposal. 

Wastes dumped in or near waters ofthe State will generally present the greatest potential 

risk. Where the ADEQ has investigated and found the illegal dumping of these materials 

the effects have generally been localized and of short duration. 

5 
178 


79850.132

PollLltion Control and Ecology Commission # () 14.00-034 

ARKANSAS POLLUTION CONTROL 

and ECOLOGY COMMISSION 

REGULATION NO. 34 

State Water Permit Regulation 

... 

-< 

I. t/lV~ .-Ir<~ 

~:.:. -

\ 

if, 

~~ :~ tn, 

Approved by Arkansas Pollurion Control and Ecology Commission 

,\ ugust 26, 20 I I 

-, 

(/) 

,..,., 

-u .;, 

"" ',"'- e> .~-;;i 

~"::' .~ ('T1 .... , ;jo 

<--;' .::l t...,1Ij .,-
179 


79850.133

TABLE OF CONTENTS 

CHAPTER 1 GENERAL PROVISIONS ...................................................................................... 1-1 

REG.34.IOI PURPOSE .................................................................................................................. I-I 

REG.34.101 AUTHORITy ............................................................................................................. 1-1 

REG.34.I03 SCOPE ...................................................................................................................... 1-1 

REG.34.104 DEFINITIONS ............................................................................................................ 1-1 

CHAPTER 2 PERMIT REQUIREMENTS FOR CONSTRUCTION, OPERATION, AND 

CLOSURE OF PITS ASSOCIATED WITH OIL AND GAS WELLS ...................................... 1-1 

REG.34.101 PITS COVERED BY THIS REGULATION SHALL INCLUDE: ......................................... 2-1 

REG.34.101 PERMIT REQUIREMENTS FOR CONSTRUCTION, OPERATION, AND CLOSURE OF 

PITS ASSOCIATED WITH OIL AND GAS WELLS ............................................................................. 2-1 

CHAPTER 3 RESERVED .............................................................................................................. 3-1 

CHAPTER 4 RESERVED .............................................................................................................. 4-1 

CHAPTER 5 RESERVED .............................................................................................................. 5-1 

CHAPTER 6 ADMINISTRATIVE PROCEDURES ................................................................... 6-1 

REG.34.601 PENALTY POLICY AND ADMINISTRATIVE PROCEDURES ....................................... 6-1 

REG.34.601 SEVERABILITy ......................................................................................................... 6-1 

CHAPTER 7 EFFECTIVE DATE ................................................................................................. 7-1 

REG.34.701 EFFECTIVE DATE .................................................................................................... 7-1 
180 


79850.134

Chapter 1 GENERAL PROVISIONS 

Reg.34.101 Purpose 

It is the purpose of this regulation to adopt standards applicable to the storage, discharge, or 

disposal of any waste which, if unregulated, will cause pollution of waters of the state or result in 

wastes being placed in a location where it is likely to cause pollution of the waters of the state. 

These standards are intended to protect public health and the environment, and prevent, control, 

or abate pollution. 

Reg.34.102 Authority 

Pursuant to the Arkansas Water and Air Pollution Control Act, Ark. Code Ann. § 8-4-101 et seq. 

(hereinafter "the Act"), the Arkansas Pollution Control and Ecology Commission (hereinafter the 

"Commission" or "APC&EC") hereby promulgates this Regulation No. 34. 

Reg.34.103 Scope 

This regulation applies to all persons proposing to construct, alter, extend, or operate any storage, 

discharge, or disposal system that does not discharge directly to waters of the state, and the 

operation of which, if unregulated, will cause pollution of waters of the state or result in wastes 

being placed in a location where it is likely to cause pollution of the waters of the state. This 

regulation does not apply to liquid animal waste management systems regulated under APC&EC 

Regulation 5 or underground injection control (VIC) facilities regulated under APC&EC 

Regulation 17 or Class II VIC wells permitted by the Arkansas Oil and Gas Commission. This 

regulation also does not apply to storage or disposal systems permitted under APC&EC 

Regulation I or Regulation 4 or to storage, discharge, or disposal systems which have been 

issued any NPDES permit other than a storm water permit or to septic systems regulated by the 

Arkansas Department of Health. 

Reg.34.104 Definitions 

The following definitions apply to this Regulation: 

"ADEQ" or "Department" means the Arkansas Department of Environmental Quality, or its 

successor. 

"Commission" means the Arkansas Pollution Control and Ecology Commission. 

"Director" means the Director of the Arkansas Department of Environmental Quality, or his or 

her designee, unless the context dictates otherwise. 

"Discharge" means a discharge of any wastes in any manner which directly or indirectly permits 

such wastes to reach any of the waters of the state. 
181 


79850.135

"Disposal" means the final use of waste, including, but not limited to, surface disposal, 

subsurface disposal, transport to a recycling or reuse facility, or placement in a landfill, 

incinerator, or injection well. 

"Facility" or "system" means any site (including land or appurtenances thereto) or activity or 

operation that is subject to this regulation. 

"Industrial Waste" means any liquid, gaseous, or solid waste substance resulting from any 

process of industry, mining, manufacturing, trade, or business or from the development of any 

natural resources. 

"Owner" or "Operator" means any person (an individual, association, partnership, corpo~ation, 

municipality, state or federal agency) who has the primary management and ultimate decisionmaking responsibility over the operation of a facility or activity. The operator is responsible for 

ensuring compliance with all applicable environmental regulations and conditions. 

"Other Wastes" means garbage, municipal refuse, decayed wood, sawdust, shavings, bark, 

lime, sand, ashes, offal, oil, tar chemicals, and all other organic or inorganic substances, not 

including sewage or industrial waste which may be discharged into the wasters of the state. 

"Any wastes" and "pollutants" include sewage, industrial wastes, or other wastes. 

"Person" means any state agency, municipality, govermnental subdivision of the state or the 

United States, public or private corporation, individual, partnership, association, or any other 

entity. 

"Sewage" means the water-carried waste products from residences, public buildings, 

institutions, or other buildings, including excrementitious or other discharge from the bodies of 

humans or animals, together with such groundwater infiltration and surface water as may be 

present. 

"Storage" means holding wastes prior to disposal in an open pit or pond dug in the ground, in 

open tanks, or other open vessel. 

"Waste" means industrial waste, sewage, or other wastes. 

"Waters of the State" means all streams, lakes, marshes, ponds, watercourses, waterways, 

wells, springs, irrigation systems, drainage systems, and all other bodies or accumulations of 

water, surface and underground, natural or artificial, public or private, which are contained 

within, flow through, or border upon this state or any portion of the state. 

1-2 
182 


79850.136

Chapter 2 

PERMIT REQUIREMENTS FOR CONSTRUCTION, OPERATION, AND 

CLOSURE OF PITS ASSOCIATED WITH OIL AND GAS WELLS AND 

BRINE PRODUCTION AND INJECTION WELLS 

Reg.34.201 Pits covered by this Regulation shall include: 

(A) Circulation Pit: A pit used during drilling where Drilling Fluids are circulated during 

drilling operations. The Circulation Pit may be part ofthe Mud Pit. Circulation Pits may 

also refer to a series of open, above-ground tanks, usually made of steel. 

(8) Completion Pit: A pit used for storage of Com pIe lion Flow-Back Fluid and Drilling 

Fluids or other materials which have been cleaned out of the well bore during the initial 

completion of a well. Circulation or Mud Pits may be used as a Completion Pits when 

drilling operations conclude. 

(C) Emergency Pit: A pit used for containing fluids at an operating well during an actual 

emergency and for a temporary period of time. Use of the Emergency Pit is necessitated 

due to unplanned operational issues, which may include but is not limited to, a temporary 

shutdown of a disposal well or fluid injection well or associated equipment, temporary 

overflow of saltwater storage tanks on a producing lease, gas flaring, cement circulation, 

or a producing well loading up with formation fluids. 

(D) Mud Pit: A pit or series of pits used during drilling where fluids are mixed and circulated 

during drilling operations. Mud Pits may also refer to a series of open, above-ground 

tanks, usually made of steel. 

(E) Reserve Pit: A pit not part of the active circulation system, used to store Drilling Fluids 

or to contain fluids generated during drilling operations. Such fluids would include, but 

not be limited to, Cuttings, Drilling Fluids, and Encountered Water. 

(F) Test Pit: A pit constructed for use during a well test. 

(G) Workover Pit: A pit used for storage of Completion Flow-Back Fluid, Workover FlowBack Fluid and other materials which have been cleaned out of the well bore during any 

subsequent completion or re-completion. 

Reg.34.202 Permit Requirements for Construction, Operation, and Closure of Pits 

Associated with 011 and Gas Wells 

(A) Owners or Operators of all pits constructed during the drilling, completion, or testing of 

an oil, gas, or oil and gas production well, [brine production and injection wells J, Class II 

2-1 
183 


79850.137

Disposal Well, and Class II Commercial Disposal Well shall be deemed to have a pennit 

by rule pursuant to Ark. Code Ann. §8-4-203(1), for the construction, operation, and 

closure of any pits covered under this Regulation if the Owner or Operator is in full 

compliance with Rule 8-17, as adopted by the Arkansas Oil and Gas Commission on 

October 28,2010. 

(8) No discharge or wastes resulting from pit construction, operation, or closure shall cause 

pollution of any of the waters of the state. No wastes resulting from pit construction, 

operation, or closure shall be placed in a location where it is likely to cause pollution of 

any waters of the state. 

(C) Any Owner or Operator who constructs, operates, or closes a pit in violation of any 

provisions of this Regulation may be subject to ADEQ enforcement action under the 

provisions of the Arkansas Water and Air Pollution Control Act. Ark. Code Ann. § 8- 4-

101 et seq., including the penalties provided in Ark. Code Ann. § 8-4-103. 

2-2 
184 


79850.138

GENERAL RULES AND REGULATIONS 

RULE B-17: WELL DRILLING PITS AND COMPLETION PITS REOUIREMENTS 

a) Applicability 

This rule applies to all pits constructed during the drilling, completion and testing of a_brine. oil. 

gas. or oil and gas production well. brine injection or disposal well. Class II Disposal Well. and 

Class II Commercial Disposal Well. Pits as used in context of this rule refer to the type pits as 

defined in subparagraph c) below. 

b) Joint Enforcement 

After the effective date of this rule, any Operator who constructs or operates a pit covered by this 

Rule, shall be subject to the specific enforcement provisions under the respective authorities of 

the Arkansas Oil and Gas Commission (AOGC) or the Arkansas Department of Environmental 

Quality (ADEQ). The regulation of the activities covered under this rule by AOGC and ADEQ 

shall be in accordance with a Memorandum of Agreement (MOA) between AOGC and ADEQ. 

c) Definitions: 

I) AOGC: Arkansas Oil and Gas Commission. 

2) ADEQ: Arkansas Department of Environmental Quality. 

3) APC&EC: Arkansas Pollution Control and Ecology Commission. 

4) Closed Loop System: A system that uses a combination of solids control equipment 

incorporated in a series of steel tanks that eliminates the use of a Pit. 

5) Completion Flow-Back Fluid: Any of a number of liquid and gaseous fluids or mixtures 

of fluids. chemicals and or solids that flow from a well and consisting of Drilling Fluid, 

silt. debris, water, brine. oil scum. paraffin, or other materials which have been removed 

from the well bore during the initial completion of a well, but does not include Frac 

Flow-Back Fluid. 

6) Cuttings: Fragments of rock which are a result of the cutting action of the drill bit on 

rock formations encountered in the well, which are transported to the surface by the 

Drilling Fluid. 

7) Discharge: The release, overflow, leakage or seepage of any fluids covered by this Rule. 

8) Drilling Fluid: Any of a number of liquid and gaseous fluids and mixtures of fluids and 

solids (as sol id suspensions. mixtures and emulsions of liquids, gases, Cuttings and other 

solids) utilized during brine, oil. or gas drilling operations. Drilling Fluid is generally 

synonymous with drilling mud, which typically contains bentonitic clays. chemical 

additives, foaming agents, lubricants, emulsifiers and weighting materials, and which 

encompasses most muds used in drilling operations, especially muds that contain 

significant amounts of suspended solids, emulsified water or oil. Mud includes all types 

of Water-Based, Oil-Based and synthetic-based Drilling Fluids. 

9) Director of the ADEQ: The Director of the Arkansas Department of Environmental 

Quality or his or her designated representative. 

63 
185 


79850.139

GENERAL RULES AND REGULATIONS 

10) Director of AOGC: The Director of the Arkansas Oil and Gas Commission or his or her 

designated representative. 

11) Ecologically Sensitive Waterbody (ESW): Waters that have been given the designated 

use of Ecologically Sensitive Waterbody by the Arkansas Pollution Control and Ecology 

Commission. This beneficial use identifies segments known to provide habitat within the 

existing range of threatened, endangered or endemic species of aquatic or semi-aquatic 

life forms. 

12) Encountered Water: Water encountered during brine. oil. or gas drilling operations, 

which is of sufficient quantity to require disposal. and which is not Produced Water. 

13) Exploration and Production Waste (E&P Waste): Wastes associated with the exploration, 

development and production of brine. oil. or gas and which are not regulated by the 

provisions of, and, therefore. exempt from the Federal Resource Conservation and 

Recovery Act, and may include, but are not limited to the following: salt water (produced 

brine or produced water); Oil-Based Drilling Fluids; Water-Based Drilling Fluids. 

Completion Flow-Back Fluid, Frac Flow-Back Fluid. Workover Flow-Back Fluid. 

Produced Water; rainwater from firewalls and Pits at drilling and production facilities; 

and other wastes not described above. 

14) Extraordinary Resource Waters (ERW): Waters that have been given the designated use 

of Extraordinary Resource Waterbody by the Arkansas Pollution Control and Ecology 

Commission. This beneficial use is a combination of the chemical, physical and 

biological characteristics of a water body and its watershed which is characterized by 

scenic beauty, aesthetics. scientific values. broad scope recreation potential and 

intangible social values. 

15) Frac Flow-Back Fluid: Fluids that consist of fresh water and solids such as sand or other 

proppant (resin or ceramic grains) or other additives that flow from a well following 

hydraulic fracturing of a well. 

16) Natural and Scenic Waterways (NSW): Waters that have been given the deSignated use 

of Natural and Scenic Waterways by the Arkansas Pollution Control and Ecology 

Commission. This beneficial use identifies segments which have been legislatively 

adopted into a state or federal system. 

17) Nonhazardous Oilfield Wastes (NOW): Fluids to be used or reused in connection with 

activities associated with the exploration. development, and production of brine,.oil. or 

gas and includes, but is not limited to, Drilling Fluids. completion fluids. surfactants, and 

chemicals used to detoxify brine, oil. or gas wastes. 

18) Oil-Based Drilling Fluid: Drilling Fluid containing diesel or crude oil rather than fresh 

water as the main liquid phase of the drilling mud. 

19) Operator: Any person who has the primary management and ultimate decision-making 

responsibility over the operation of a facility or activity. The Operator is responsible for 

ensuring compliance with all applicable regulations and conditions. 

20) Person: Natural person, corporation. organization. municipality. government or 

governmental subdivision or agency, public or private corporation. business trust, estate. 

trust, individual, partnership. association, or any other legal entity. 

64 
186 


79850.140

GENERAL RULES AND REGULATIONS 

21) Pit: shall include: 

A) Circulation Pit: A pit used during drilling where Drilling Fluids are circulated 

during drilling operations. The Circulation Pit may be part of the Mud Pit. 

Circulation Pits may also refer to a series of open, above-ground tanks, usually 

made of steel. 

B) Completion Pit: A pit used for storage of Completion Flow-Back Fluid and 

Drilling Fluids or other materials which have been cleaned out of the well bore 

during the initial completion of a well. Circulation or Mud Pits may be used as a 

Completion Pits when drilling operations conclude. 

C) Emergency Pit: A pit used for containing fluids at an operating well during an 

actual emergency and for a temporary period of time. Use of the Emergency Pit 

is necessitated due to unplanned operational issues, which may include but is not 

limited to, a temporary shutdown of a disposal weI! or fluid injection well or 

associated equipment, temporary overflow of saltwater storage tanks on a 

producing lease, gas flaring, cement circulation, or a producing well loading up 

with formation fluids. 

D) Mud Pit: A pit or series of pits used during drilling where fluids are mixed and 

circulated during drilling operations. Mud Pits may also refer to a series of open, 

above-ground tanks, usually made of steel. 

E) Reserve Pit: A pit not part of the active circulation system, used to store Drilling 

Fluids or to contain fluids generated during drilling operations. Such fluids 

would include, but not be limited to, Cuttings, Drilling Fluids, and Encountered 

Water. 

F) Test Pit: A pit constructed for use during a well test. 

G) Workover Pit: A pit used for storage ofCompJetion Flow-Back Fluid, Workover 

Flow-Back Fluid and other materials which have been cleaned out of the well 

bore during any subsequent completion or re-completion. 

22) Pollution: Such contamination or other alteration of the physical, chemical, or biological 

properties of any waters of the state, or such discharge of any liquid, gaseous, or solid 

substance in any waters of the state as will, or is likely to, render the waters harmful, 

detrimental, or injurious to public health, safety, or welfare; to domestic, commercial, 

industrial, agricultural, recreational, or other legitimate beneficial uses; or to livestock, 

wild animals, birds, fish, or other aquatic life. 

23) Produced Water: Water produced from any productive or potentially productive brine, 

oil, or gas producing interval in the well, which is not Completion Flow-Back Fluid, Frac 

Flow-Back Fluid, Workover Flow-Back Fluid, or Encountered Water. 

24) Stormwater: Rainwater runoff, snow melt runoff, and surface runoff and drainage. 

25) Water-Based Drilling Fluid: Drilling Fluid containing fresh waters rather than diesel or 

crude oil as the liquid component of the drilling mud. 

26) Waters of the State: All streams, lakes, marshes, ponds, watercourses, waterways, wells, 

springs, irrigation systems, drainage systems, and all other bodies or accumulations of 

65 
187 


79850.141

GENERAL RULES AND REGULATIONS 

water, surface and underground, natural or artificial, public or private, which are 

contained within, flow through, or border upon this state or any portion of the state. 

27) Water Table: The surface between the zone of saturation and the zone of aeration and the 

surface of a body of unconfined ground water at which the pressure is equal to that of the 

atmosphere. 

28) Workover Flow-Back Fluid: Any of a number of liquid and gaseous fluids and mixtures 

offluids, chemicals and or solids consisting of Drilling Fluid, silt, debris, water, brine, oil 

scum, paraffin, or other materials which are removed from the well bore during the 

subsequent or recompletion of a well. 

d) Commencement of Construction Operations 

The Operator shall notify the appropriate AOGC Regional Office, via mail, e-mail or fax, at least 

forty-eight (48) hours prior to the commencement of Pit construction operations. The Notice of 

Commencement (NOC) shall be on a form agreed upon by AOGC and A DEQ and shall include at 

a minimum (i) the Operator information (name, address, and emergency contact phone number), 

(ii) the location of the drill pad site (latitude and longitude in degrees, minutes, seconds. and 

County. Section. Range, and Township, including the 1/4 of the 114 position within the Section), 

(iii) the approximate size of the drill pad, (iv) the approximate distance to the nearest Waters of 

the State, (v) the type of fluid system and type of Drilling Fluids to be used, (vi) well name, (vii) 

nearest city/town, and (viii) the approximate date Pit construction operations shall commence. 

Upon receiving the Notice of Commencement, AOGC shall forward a copy to ADEQ, Arkansas 

Department of Health, and the County Judge of the county in which the pit is located. AOGC and 

ADEQ staff may conduct site inspections as deemed necessary. 

e) Discharges Prohibited 

The Discharge from a Pit or any activity associated with the drilling or completion of a well to 

any surface or ground waters or in a location where it is likely to cause pollution to any surface or 

groundwaters is prohibited. Such discharge may subject the Operator to ADEQ enforcement 

actions under the provisions of the Water and Air Pollution Control Act (Act 472 of 1949, as 

amended, A. C. A. § 8-4-101, et seq.) and enforcement actions of AOGC under Act 105 of 1939, 

as amended. Any Discharge must be reported within twenty-four (24) hours to the AOGC and 

ADEQ. Leakage from any Pit is considered an unauthorized Discharge. 

f) Mud, Circulation and Reserve Pit Construction Requirements: 

I) General Requirements: 

A) Mud, Circulation and Reserve Pits constructed within the 100 year flood plain 

must be in accordance with any county or other local ordinance or requirement 

pertaining to the 100 year flood plain. 

B) The location of all Mud, Circulation or R.eserve Pits shall be chosen with 

reasonable consideration to maximizing the distance from surface waters. Mud, 

Circulation or Reserve Pit construction in streams, creeks, lakes. or any other 

water bodies is striclly prohibited. 

C) Any Mud, Circulation or Reserve Pit construction in wetlands mUSI receive 

appropriate prior authorization from the U.S. Army Corps of Engineers. 

66 
188 


79850.142

GENERAL RULES AND REGULATIONS 

D) In areas other than jurisdictional wetlands referenced in subparagraph f) I) C) 

above, where the water table is ten (10) feet or less below the ground surface. all 

Mud, Circulation or Reserve Pits shall be constructed above ground. or the 

Operator shall use a closed loop system. 

2) Reserve Pit Requirements: 

A) All Reserve Pits shall be constructed with a minimum of two (2) feet of 

freeboard, and shall be maintained to handle a storm event up to a lO-year, 24-

hour storm event during the operation of the Reserve Pit. Reserve Pits 

constructed above ground utilizing bermed side walls, shall be constructed with 

a minimum of2:1 (two feet horizontal to one foot vertical) side slope on both the 

interior and exterior walls. The top of the bermed pit walls must be a minimum 

of 2 feet wide. 

B) All Reserve Pits shall be constructed with a liner using one of the following 

methods: 

i) A synthetic liner of at least twenty (20) mils thickness, with a four (4) 

inch welded seam overlap, completely covering the Reserve Pit bottom 

and inside walls. Sand or sandy material must be placed below the liner 

if a rocky or uneven surface is encountered. The synthetic liner must be 

protected from deterioration, punctures andfor any activity which may 

damage the integrity of the synthetic liner. 

ii) A compacted clay liner may be applied to the bottom and sides of the 

Reserve Pit to create an impervious/impermeable barrier. Construction 

of the Reserve Pit and compacted clay liner shall be in accordance with 

sound construction and engineering principles designed and constructed 

to prevent any leakage or seepage to Waters of the State, with due 

consideration given to the topography, Pit material composition, and 

availability of liner material(s). The clay used to construct the liner may 

be in situ or mixed with additional off-site materials, if the on-site clay is 

inadequate. 

iii) Other materials or methods used for liner construction must be approved 

by both the Director of the ADEQ and the Director of the AOGC prior to 

use. 

3) Mud and Circulation Pits: 

A) Closed Loop Systems may be used for Mud and Circulation Pits, and must be 

maintained in a leak-free condition. 

B) Earthen Mud and Circulation Pits shall be constructed with a minimum of two 

(2) feet of freeboard. and shall be maintained to handle a storm event up to a 10-

year, 24-hour storm event during the operation of the Mud or Circulation Pit. 

C) Earthen Mud and Circulation Pit liners shall be constructed using one of the 

following methods: 

i) A synthetic liner of at least twenty (20) mils thickness, with a four (4) 

inch welded seam overlap. completely covering the Reserve Pit bottom 

67 
189 


79850.143

~llrtlt aIarolimt (Ji)lmE1:al~lV 

;lILnnm of ~=,.,dlltiftts 

e§ftth~Oe~ 

~tt!cigI], ;N(!L 2760t-1096 

Pricey Harrison COMMITTEES: 

57th District, Guilford County March 21, 2013 Appropriations, Vice Chait 

Offie( Address: 2119 Legislative Building Appropriations Subcommittee on 

16W.JonesStreet 

Raleigh, NC 27601-1096 

Natural & Economic Resources, Co-Chair Election Law & Campaign Finance Reform 

Energy & EneTgY Efficiency. Vice Chair Environment & Natural Resources. Vice Chair Judiciary 1 

Telephone: (919) 73:M771 

(919) 754·3259 Fax 

E-mail: 

Home Address: 

pricey.harri!lOn@ncJeg,net 

P.O. Box 9339 Greensboro, NC 27429 

Marine Resoutces & Aquaculture 

Public Utilities 

Dear Chairman Shimkus: 

Environmental Review Commission, Co-.Chair Energy Policy Council 

Thank you for the opportunity to testify on February 15, 2013, before the Subcommittee on Environment 

and the Economy on ''The Role of States in Protecting the Environment Under Current Law", I hope I ""'as 

able to make the case that states like ours need at least minimum federal protections to protect the health of 

our people and our natural resources. Our regulatory structure continues to be weakened, and took a big hit 

during the last bienniwn when we enacted legislation prohibiting any regulations stronger than federal 

regulations. Below are my answers to Representative Schakowsky's specific questions on fracking. 

1) How would you describe the likelihood of passing a law like Colorado's requiring 

groundwater mouitoring before and after drilling and wen completion? 

North Carolina's Mining and Energy Commission (MEC) is a young institution, created in late 2012 (NC 

Session Law 2012-143) for the purpose of developing a comprehensive regulatory program to oversee 

potential oil and gas development in the state. North Carolina has no history of large-scale oil and gas 

development. "Ibis places a heavy burden on the newly formecl MEe, which must build a modem program 

for managing the development of oil and gas .tesolltCes in North Carolina from the ground up. 

The MEC has not yet proposed any rules for adoption. Thus, it is somewhat difficult to characterize or 

predict the Commission's tendencies on substantive policy matters. There is also some concern that the 

makeup of the MEC is very heavily industry dominated. This having been said, committees of the MEC are 

currently considering draft rules to regulate several different aspects of modem oil and gas development. 

Among these is a draft rule for chemical disclosure, currently before the Commission's Environmental 

Standards Committee. As currently drafted, this rule draws heavily from hydraulic fracturing chemical 

disclosure rules in Texas and Colorado and also incorporates model regulatory language developed by 

Environmental Defense Fund. The Chair of the Environmental Standards Committee has stated his intent to 

take up the issue of baseline groundwater testing in the coming weeks. In preparation for that discussion, the 

Chair has directed specific attention to and provided committee- members with information pertaining to the 

groundwater testing requirements recently adopted in Colorado. 

o 
190 


79850.144

I have concerns that baseline and post-testing of water supply wells is far from sufficient to provide 

assurance that contamination has not occurred. Unless extensive monitoring wells are installed to allow 

sampling at vertical intervals close to and along the vertical portion of a well as,. well as frequently along the 

horizontals, it is only too likely that groundwater contamination could be extertsive before it is actually 

detected in • post-drilling or -fracking sample from a drinking water well In presentations to the 

Environmental Standards Committee of the Mining and Energy Commission, the cost of baseline testing for 

all of the wells within a 5,000 foot radius of a gas extraction well head was emphasized (this is a highly 

populated area, with over 5 times the population density of Bradford County PA, with its intensive gas 

development), with other calculations appearing to suggest that costs could be reduced for operators by only 

requiring a fraction of the wells within that radius be tested, a discouraging indication of the regulatory 

priorities in play. Rules such as Colorado's may be an improvement on the lack of any baseline and post 

drilling water well tesring requirements by other states, but for R state like ours, that has protected its 

groundwater for a best use of drinking water, and for which private wells are the daily water source for nearly 

3 million residents, they are not adequate to prevent a legacy of contamination that may not show up for 

years after closure of a gas well site. 

Further, the success of a baseline testing program depends greatly on the extent of chemical disclosure, 

so that unique and characteristic compounds for any operator can be detected. It is a very sobering indication 

for the rulemaking process and its potential to provide any protection or accountability that several 

recommendations made by stakeholders (Including industry, consumer, landowner, local govt, health, enviro 

representatives) to improve the level of information to be provided to the regulatory agency, even before 

drilling and fracking, were discarded by the NC DENR Deputy Director as "too burdensome" for industry. 

The consequences of such a filtering of conscientious stakeholder input, including an industry perspective, is 

that the agency will not have adequate information for groundwater monitorin~ during drilling and 

completion, and emergency responders/health providers have a potentially long delay before obtaining 

critical information. 

In summary, it is difficult to predict the final form rules will take as they make their way through 

rulemaking process, but the MEC seems to be looking to recent policy advances in other states and Colorado 

has caught the attention of influential MEC members. 

2) CouId regulators in North Carolina adopt such a requirement without the 

Legislature passing a law? 

As enacted, NC Session Law 2012-143 directs the MEC to adopt rules to require the collection of 

baseline water quality data and pre-drilling groundwater tesring. The law also assigns presumptive liability to 

oil and gas well operators for any groundwater contamination occurring with 5,000 feet of a wellhead. While 

the law does not specifically require post-completion groundwater testing, the MEC is required to adopt rules 

for the "protection of the quality of the water, air, soil, or any other environmental resource against injury or 

damage or impairment." Further, the MEC is given some discretionary authority to adopt rules regarding 

"any other matter the Commission deems necessary for implementation of a modem regulatory program for 

the management of oil and gas exploration and development in the State." Taken together, the provisions of 

NC Session Law 2012-143 seem to provide the MEC with a legal foundation for adopting a pre-driIling/postc0l:'pletion groundwater testing rule, similar to the Colorado rule, "'~thout req;unng additional legislative 

acuon. ! 

That said, I am skeptical that the Mining and Energy Commission would propose or end up adopting a 

baseline and post drilling monitoring program without diluting the requirements to minimize the "regulatory 

burden" for operators/vendors. 
191 


79850.145

Were the MEC to adopt such a baseline and post testing rule, in our state where private well use is 

intensive, it would be quite inadequate to detect contamination before a plume became too widespread for 

capture of the plume and remediation to be feasible. In the areas where fracturing would occur in NC, 

groundwater flows somewhat unpredictably in bedrock fractures, leaving water supply well users even more 

vulnerable to contamination with no prior indications of a problem. 

3} Is North Carolina's current regulatolY system equipped to handle development of 

the state's shale gas resources? What are the most significant weaknesses in the 

state's exiting safeguards? 

North Carolina's regulatory system is not currently equipped to adequately regulate large-scale oil and gas 

development in the state. As noted, North Carolina has no bistory of large-scale oil and gas development and 

therefore has no regulatory program for administering sucb activities. ~'hile directing the MEC to begin 

developing rules for a modern oil and gas regulatory program, NC Session Law 2012-143 also enacted a 

legislatively imposed moratorium on the issuance of permits for unconventional oil and gas 

development. This moratorium can only be lifted by legislative action. This moratorium was implemented to 

ensure that rules for the protection of public health, commuuities and the environment are adopted and 

implemented before drilling or hydraulic fracturing are authorized. 

As it is not yet possible to comment on the weaknesses of regulatory program that does not yet exist, I 

would offer the following as potential threats that could undermine efforts to establish an adequate state 

regulatory program in North Carolina: 

1) NC Session Law 2012-143 requires that the MEC adopt rules for a comprehensive oil and gas 

regulatory program by October 2014. This is an ambitious goal given the sheer volume of work that 

must be completed. The arbitrary timeline has also been widely criticized as encouraging the MEC to 

"cut comers" and rush the rulemaking. Even so, there is some doubt that the MEC will be able to meet 

the October 2014 deadline. 

Adding to this threat, a proposal currently before the NC General Assembly which bas passed the Senate, 

seeks to sunset the current moratorium on the issuance of permits for unconventional oil and gas 

development on March 1, 2015. The proposed legislation also appears to functionally pre-approve any 

MEC generated regulations. Even if the MEC does meet its October 2014. deadline for rulemaking, the 

complexities of North Carolina's Administrative Procedures Act enacted in 2011 whicb I mentioned in 

my testimony, could prevent rules from going into effect prior to tbe sunset of the moratorium. This 

creates the potential for unconventional oil and gas development permits to be issued before a 

comprehensive regulatory program is in place. 

2) The geology in the region where North Carolina's potential shale gas resources are located is 

known to be highly fractured and crosscut by vertical diabase dykes. Groundwater collects in 

these fractures and in the eroded margins adjacent to diabase fonnations. Insufficient scientific 

knowledge of the geology and movement of groundwater within this complex system limits the 

ability of regulators to design and implement regulations for oil and gas well construction and 

operation to most effectively protect ground water resources and ensure the integriry of oil and 

gas well. NC Legislators seem almost ideologically opposed to questioning the complexities of 

extraction operations in such a setting. The state legislature has, so far, declined to make 

the personnel and funding investments needed to develop a more comprehensive 

understanding of this region's unique hydrogeological characteristics. As I also mentioned in my 

testimony, the Legislature has slashed our Department of Environment and Natural Resources 

budget by 40% off of 2005-2006 levels. 
192 


79850.146

3) In a review of existing NC regulations related to oil and gas program for North Carolina, the 

STRONGER (State Review of Oil and Natura! Gas Environmental Regulations) process produced over 

60 recommendations for regulatory development, ranging from stormwater management, to handling of 

naturally occurring radiation resulting from drilling and extraction, to management of various oil and gas 

wastes, to regulating water withdrawals. While many of these recommendations were captured in the 

rules to be developed under authority of NC Session Law 2012-143, not all of them were incorporated, 

and there are shortcomings of the STRONGER process itself (see attached critique by Clean Water for 

NC) in not stipulating minimum reqillrements, merely recommending best practices. There is discussion 

of a "comprehensive permit" for such operations, with all of the shortcuts likely to result from multidivisional responsibility for inspections and lack of expertise with shared responsibilities. The regulatory 

agency has been significantly downsized in the last two years, with little prospect of staffing increases 

sufficient to support an oil and gas program, particularly during any lag time before any state revenues 

would be generated by production. 

4) A key failure of regulatory accountability in NC's program is the very inadequate level of bonding for 

operators/vendors to be able hold them accountable for performance during operations, liability for 

environmental or property damage, as well as final closure and testing. Currently, the only bond required 

for an operator is $5,000 plus a dollar per linear foot, supposedly sufficient to buy enough cement to 

pour down the vertical segment of an extraction well. Consistent with the Commission's and new agency 

leadership's motivation to reduce "regulatory burdens" it may prove difficult to raise the bonding 

requirement to a level commensurate with the risks involved. 

In sum, as I mentioned in my testimony, North Carolina is ill-equipped to handle development of the 

state's shale gas resources at the current time for the above reasons. 

Please let me know if you have any additional questions. 

cc: Representative Paul T onko 

Representative Tan Schakowskv 
193 


79850.147

MEMORANDUM 

TO: Clean Water For NC, Evan Kane ofDWQ Aquifer Protection 

FROM: Tabitha Vigliotti, Duke Stanback 2011 Intern, Hope Taylor, Exec. Director 

DATE: August 5, 2011 

RE: STRONGER Fracking Audit 

CWFNC's general assessment of STRONGER's Hydraulic Fracturing Guidelines? 

In general, the STRONGER Hydraulic Fracturing Guidelines provide 

appropriate parameters for hydraulic fracturing regulations, however they 

are lacking critical specifications to assess the value of such regulations and 

fall short of protecting residents and the environment in some areas. 

STRONGER's Hydraulic Fracturing Guidelines are a suite of parameters to consider 

while making the regulatory framework for overseeing hydraulic fracturing in a state, but do not 

provide the specifics necessary to create regulations in North Carolina. They offer no 

prescriptive solutions to gaps in protections and fail to address any regionally specific issues. 

Generalized strength and weaknesses in the Hydranlic Fracturing Guidelines and 

associated references to the 2005 Guidelines: 

Strength: 

• The Guidelines set forth an appropriately comprehensive list of parameters for 

consideration of a hydraulic fracturing regulatory program. 

Weaknesses: 

• The Guidelines are nonspecific. They leave words like "adequate" undefined and 

this ambiguity can lead to insufficient and/or inappropriate protections; 

• The Guidelines leave too much "flexibility" to the states. With no bottom-line 

standards, The Guidelines allow states to hide insufficient protections under the 

guise of their discretion. This could be partially ameliorated though the inclusion 

of examples of states implementing improvements to inadequate regulations; 

• The guidelines do not assess the extent or effectiveness of enforcement of the 

regulatory program; 

• STRONGER's Workgroup dismissed several relevant public comments on their 

Hydraulic Fracturing Guidelines. 

Specific strengths and weaknesses in the Hydraulic Fracturing Guidelines and 

associated references to the 2005 Guidelines (Following the structure of the Hydraulic 

Fracturing Guidelines) 

X.2. General 

• The Guidelines' first consideration is of potential risks associated with the 

depth of the reservoir to be fractured and its proximity to water. This signifies 

the importance of protecting drinking water. 
194 


79850.148

X.2.1 Standards 

• The Guidelines recommend that protections vary within a state based on local 

conditions. This is a strong suggestion in theory, but if the state does not have the 

capacity to investigate differences and enforce disparate standards, this 

recommendation may lead to lacking protections; 

• "Waivers" or "variances" are mentioned as a means to provide "flexibility" in 

meeting requirements. However, extensive use of waivers or variances 

functionally weakens regulatory authority and, therefore, a state's ability to 

protect residents and the environment. 

• The Guidelines set forth a strong waste management hierarchy (2005 Guidelines, 

section 5.3). 

X.2.2 Reporting 

• The Guidelines intentionally do not require sufficient field staffing in the 

following phrase "reporting should be sufficient to allow for the presence of field 

staff." STRONGER's response to a public comment shows the lack of a specific 

requirement was intentional: A "commenter recommended that states have the 

flexibility to determine which hydraulic fracturing operations should require 

notice rather than all operations. The Workgroup's intent was to provide states 

with flexibility. The language in the revised guidelines states that the notification 

should be sufficient to allow for field staff to monitor activities." 

• The inclusion of a recommendation to exclude confidential chemicals from 

reporting after recommending that chemicals should be reported to the state and 

medical providers, leaves ambiguity for disclosure guidelines and contradicts the 

general intent ofthe guideline; 

• The guideline that agencies keep records for only three years unless in active use 

is an insufficient time to hold records. Mitigation may be required after the threeyear interval and loss of records would lead to potentially increased expenses and 

inadequate information about quantities and chemicals injected, thus impairing 

ability to remediate; 

• The Guidelines (section 4.2.2.3) recommend states should get input from advisory 

groups, but this falls short of saying states should incorporate or give weight to 

that information. 

X.2.3 Staffing and Training 

• Strong consideration of different categories of personnel needs, but no mention of 

the consequences of insufficient staffing or the priority of staffing needs if a state 

is operating with a limited budget; 

• The Guideline's have useful specifications of proper education for Technical 

Support (2005 Guidelines, section 4.3.1.2); 

• The Guidelines mention funding needs must be sufficient to meet environmental 

goals. The mention of funding for environmental goals as the first consideration 

reveals the importance of funding to meet these goals. However, without a clear 

definition of "sufficient,", the guideline has little effect; 
195 


79850.149

• The Guidelines recommend states address funding though a variety of sources 

beyond general appropriations. However, there is no discussion of challenges 

inherent in different funding options. If a state relies entirely on a fee-dependent 

system, limited enforcement or lax permitting of the industry that effectively pays 

for enforcement officers may result, as observed for FDA programs. 

X.2.4 Public Information 

• The Guidelines wisely recommend public information, especially where fracking 

has not occurred and high volumes of water will be used, but there is no 

recommendation of an adequate effort for public disclosure and education; 

• The Guidelines recommend that industry associations disseminate public 

education materials; this may lead to biased information or selective distribution. 

X.3 Water and Waste Management 

• It is encouraging that the first consideration of this section is the evaluation of the 

availability of water; 

• The Guidelines promote the recycling of wastewater without mention of potential 

for increased toxicity levels in recycled water and the need for increased 

precautions for use and handling of recycled water; 

• States should be required to refuse to issue or reissue permits if the applicant is 

out of compliance or has shown a "history of past violations demonstrates the 

applicant's unwillingness or inability to comply with permit requirements," rather 

than simply have the "authority" to do so as the guidelines suggest; 

• The Guidelines make no mention of compliance and enforcement of wastewater 

releases or contaminant standards; 

• Rather than states setting Naturally Occurring Radioactive Material (NORM) 

action levels (section 7, 2005 Guidelines) to protect human health and the 

environment during handling, transport and waste management, action levels 

must be set to fully implement federal OSHA and EPA worker and environmental 

standards. This seems to follow with requirements for training and certification 

for workers in 7.3.4.; 

• Entities with amounts of NORM exceeding action levels MUST (not "should") be 

required to be permitted; 

• States must have stronger and more specific regulation than "performance 

standards" for removal, decontamination and remediation to protect human health 

and the environment, and MUST have standards for storage of radioactive 

materials; 

• Transfer of NORM contaminated land and equipment must require specific 

agency notification and approval and oversight of transfer plan to prevent off site 

contamination and exposures, in addition to "notification of appropriate parties"; 

• State regulation must include standards and procedure for release of materials and 

equipment only after agency inspection to assure that radiation is below action 

levels; . 

• The Guidelines suggest states encourage adequate infrastructure development, but 

do not address what is considered adequate and make no mention of infrastructure 

as an additional cost to a state or local entity. More detailed guidance for the 
196 


79850.150

"encouragement" of infrastructure, and responsibilities for funding it, should be 

included. 

Public Comments not incorporated by STRONGER's Workgroup into the 

Hydraulic Fracturing Guidelines, but which CWFNC strongly recommends to NC 

DENR for consideration: 

• "Agencies should review direction and extent of a fracture due to the proximity of 

ground water;" 

• "Identification of potential conduits for fluid migration be conducted by 

independent certified geologist and include all potential opportunities for 

migration, not only man-made ones;" 

• "State require the performance of ground water analysis and inventory prior to 

any drilling activities in order to develop baseline data;" 

• "States should have guidelines in place to govern and perhaps restrict fracking 

when circumstances provide that management and monitoring cannot assure the 

prevention of contamination;" 

• "require a state to develop regulations regarding the placement of gas wells in 

relation to domestic water wells and the monitoring of groundwater 

contamination;" 

• "use of closed-loop systems;" 

• "state require that quantitative aquifer characterization be performed to evaluate 

water supply levels, and that a maximum permitted depletion be establishes to 

maintain existing beneficial use, prior to and potential drawdown for drilling and 

hydraulic fracturing." 
197 


79850.151

March 21, 2013 

The Honorable John Shimkus, 

Chairman 

Q 

Gaither5,'burg 

A CHA1l.-\CTER COUlITS: CITY 

Subcommittee on Environment and the Economy 

One Hundred Thirteenth Congress 

Congress of the United States 

House of Representatives 

Dear Chairman Shimkus, 

Thank you for the opportunity to respond to additional questions for the record from 

members ofthe Subcommittee on Environment and the Economy. I would also like to 

express my appreciation of your warm greeting of the panel of speakers on February 15. 

It was an honor for me to appear before your committee and deliver testimony on behalf 

of the National League of Cities. 

Sincerely, 

Michael A Sesma 

Council Vice President 

City of Gaithersburg, Maryland 

Attachment: Questions for the Record 

City of Gaithersburg 31 South Summit Avenue. Gaithersburg, Maryland 20877-2038 

301-258-6300 FAX 301-948-6149 TTY 301-258-6430 cityhall@gaithersburgmd.gov. 

MAYOR 

Sidney A. Katz 

www.gaithersburgmd.gov 

COUNCIL MEMBERS 

Jud Ashman 

Cathy C. Drzyzgula 

Henry F. Marrafla, Jr. 

Michael A. S6sma 

Rvan SpieQel 

CITY MANAGER 

Tony Tomasello 
198 


79850.152

Subcommittee on Environment and the Economy 

Questions for the Record, Michael A Sesma 

The Honorable lohn Shimkus 

1. Your testimony states that "cities and towns do not always agree with the 

substance of rules put forth by EPA, particularly the increasing number of 

unfunded federal mandates imposed on local governments." I would 

imagine that members of the League of Cities face a finite amount of 

resources to address any particular production (i.e. education, health, 

environmental protection). Could you please site specific trade-offs you 

have had to make meet these mandates? 

In the state of Maryland, EPA rules are administered through several state 

agencies. These rules have been designed to address not only local water quality, 

but also the recovery and health of the Chesapeake Bay, which is intimately 

linked to the economic health of the state and its communities. The benefits of 

these regulations are clearly understood by the public. Nonetheless, the costs of 

compliance are to both capital and operating budgets, which are already 

stressed in the current economy. These unfunded federal mandates translate 

into unfunded state mandates, which municipalities such as Gaithersburg must 

address. My testimony describes the significant fiscal impact of the 20% retrofit 

mandate. Indirectly, the costs of the mandates are often related to an element of 

"catching up" due to a lack of past regulation for local and regional water quality 

issues and failure to meet voluntary guidelines. A result has been additional and 

significant fiscal impact to planned and anticipated growth and development in 

the city. 

Increasing regulation on water quality issues locally and regionally brings with it 

additional operating costs. As the city continues to grow we must also increase 

our staff and resources to address growing community needs, including costs for 

training, vehicles, equipment, information technology and education, all of which 

have budgetary impacts. 

For cities such as Gaithersburg, whose primary source of revenue is its tax base, 

the incurred costs as a result of increased regulatory requirements have the 

potential to slow needed and desired new and redevelopment. The rate of our 

growth is influenced by the cost of providing a minimal level of service to 

support that growth, maintain the quality of life, and remain in compliance with 

environmental regulations. Public needs and demands do not shrink as 

populations grow and cities must have the fiscal health to address these needs 

without hampering opportunities for growth. A choice cities will face in 

accommodating growth is whether to raise fees and/or taxes for building and 

operating the facilities to ensure regulatory compliance, or defer or fail to invest 

in the infrastructure necessary to support growth. 
199 


79850.153

Subcommittee on Environment and the Economy 

Questions for the Record, Michael A Sesma 

The following is a list of mandated programs requiring increased operating and 

capital resources in the City of Gaithersburg: 

• NPDES Permit 

o Twenty percent retrofit requirement: Requires retrofit of 

untreated impervious surface; requirement is impossible to meet 

on public lands, so will require innovative approach to meet 

requirement as many private owners will not be able to afford 

requirements 

o Storm water BMP inspection and maintenance program: 

Additional operating costs 

o Illicit discharge detection and elimination program: Additional 

operating and capital costs 

Chesapeake Bay total maximum daily load (TMDL) (part of watershed 

implementation plans-WIP) 

o Increased reporting requirements 

o Unknown mitigation costs 

o Uncertainty of time line and actual requirements for small 

municipalities makes planning and budgeting difficult 

• Growth Offset (Nutrient Trading) Policy 

o Uncertainty of policy status, content, and timeline results in 

planning and budgeting difficulties 

o Unknown impacts to public and private development 

• Water quality protection charge to provide continuous funding for 

stormwater programs 

o may require the establishment of an enterprise fund and 

credit/appeals process and additional operating costs 

o Implementation and applicability issues bring additional costs that 

could disproportionately impact small businesses and affordable 

housing 

The Honorable lanice D. Schakowsky 

The right-to-know about chemicals used in fracking fluids is not contingent on 

the geologic formations in which they are used. Several states, with varying 

geology, have adopted very similar laws requiring disclosure of chemicals 

used in fracking fluids. 

Colorado recently enacted a new rule requiring groundwater testing both 

before and after drilling and well completion operations. Currently, Colorado 

is the only state that requires this. 

As with disclosure of fracking chemicals, this rule could and should apply in 

any state, regardless of geology. Residents of every state should be protected 

by early detection of potential groundwater contamination from oil and gas 
200 

Æ 


79850.154

Subcommittee on Environment and the Economy 

Questions for the Record. Michael A Sesma 

drilling operations, and local governments should have the information they 

need to protect their drinking water sources and systems. 

1. Would pre- and post-drilling testing of groundwater provide useful 

information and early warning of contamination for cities like 

Gaithersburg? 

Yes. pre- and post-drilling testing of groundwater would provide useful 

information and early warnings of contamination to drinking water supplies 

from any drilling actions in Maryland. Gaithersburg is served by drinking water 

supplies from the Washington Suburban Sanitary Commission (WSSC). which 

obtains its water supplies from the Potomac and Patuxent Rivers. The Potomac 

has its headwaters in West Virginia within the Marcellus Shale formation. 

Requiring pre- and post-drilling testing of groundwater in any community 

upstream from ours would help protect our drinking water supplies. 

2. Would pre- and post-drilling testing of groundwater provide useful 

information and early warning of contamination for other local 

governments represented by the National League of Cities? 

Yes. pre- and post-drilling testing of groundwater would provide useful 

information and early warnings of contamination of drinking water supplies to 

any community where oil and natural gas drilling is present. as well as to 

communities downstream from such drilling. 

It is likely that contamination that may result from drilling and gas well mining 

will have a greater impact on downstream communities. where the costs of clean 

up are likely to be much higher. Moreover. downstream communities may not 

benefit directly from revenue associated with the gas recovery operations that 

would be required to address any contamination.