Issue. I commend the epa for working on this rule. Do you have a conference that this final rule is protective of health and the environment, are there gaps in the protections under this rule that would need to be filled by legislation . I believe the rule is very strong and very protective. And in terms of any gaps we dont believe there are any gaps. We believe all the risks are put in place. All the rigorous technical information. What about beneficial reuse . Will this rule restrict beneficial reuse in anyway to stigmatize coal ash . We dont believe it will. The real clarity is not subject to the rule. But still i expect were going to hear from the second panel that legislation is needed to remove epas authority to regulate cole ash under subtitle c in the future. What factors might lead epa to some day regulate coal ash under subtitle c. To be clear we had proposed an approach under d and c. We made a decision under d the seat proposal is no longer on the table. Like any other rule in the future, we it would go through the same rule, Public Notice in common for consideration, however, i would note that we have a strong confidence that between the National Criteria strong National Criteria and the utilization program, and epas approval of that, we believe moving forward that we will have the protections that are necessary to protect communities. And we are moving forward, working with the states and implementation. I think its safe to say that coal ash does not become more toxic, and implementation of the title is effective. If it does turn out ash is more toxic, the state u tailties are not doing enough to protect human health, if that turned out to be the case would it be important for epa to be able to pursue subtitle y regulation in your opinion . Our focus right now you know, we have reflected data from all stakeholders, we believe we put in place a rigorous rule to offer the protection of the communities around the country. So we are moving forward in implementation, working with states working with public stakeholders, with the utility to provide the protection. Were not looking at further rule making at this moment. I understand that im just saying, because those who advocate you shouldnt be able to pursue subtitle c regulation or to eliminate that option if it turns out that the ash is becoming more toxic, and that the states and utilities arent doing enough under subtitle d, do you think it would be important for epa to continue to be able to pursue subtitle c regulation . We look at implementation of this rule, and see what issues are addressed in the future. So you dont want to comment or the possibility of pursuing the subtitle c regulation . Not at the moment. Not at this time . Thank you so much. I yield back, mr. Chairman. Gentleman yields back his team. I think well recess now and come back immediately after the vote. There should be two votes, you have time to stretch and get a cup of coffee. But most of us will come back promptly after the second vote. This hearing is now recessed. I want to call the hearing back to order. The next order of business is recognizing the gentleman from West Virginia for five minutes, for his round of questions. Thank you, mr. Chairman. Thank you again for your as i said in my opening remarks i appreciate the working relationship weve had. Just a couple questions, three or four quick questions, two of which mr. Stanislav may be yes or no. The first one is do you personally think that cole ash is a Hazardous Material . Well, weve identified the various risks of coal ash mismanagement and put in place a number of requirements to be protected against those risks. And weve identified the various constituents in coal ash and the ways that we should establish, for example, Groundwater Program to be protected. Which is in and of itself imma teerl. Whether its concrete drywall. Let me go from there, with the past with the legislation we passed over the last two congresses, and the 12th and 1300 would that have created certainty within the recyclers and the Utility Industry . Well you know you dont think it would . Well what i can say is with respect to the rule we think it provides the kind of certainty. Im not talking about the rule, im talking about the bill we had. Right. What were my remarks again are all about certainty. I come from the business world, we need to have certainty. I was trying that legislation was trying to get that, unfortunately, i believe i know it was a reasonable effort it doesnt create certainty. The proposed rule provides that no provides us no assurance coal ash will not be regulated as a Hazardous Waste in the future. Could you explain the agencys justification for leaving that door open and almost deliberately causing uncertainty on this issue . Can you explain why they kept the door open instead of closing it . So that we could advance . Yeah i think that we provide a tremendous certainty in the final rule in beneficial use i think we make very clear that beneficial use is not subject to the rule, the existing protections that continue to remain. We think that coupled with other acts that were taken will foster not only the stabilization, but increased use of beneficial use. How do you deal with it, that on page 18 it says this rule defers, postpones a final determination until Additional Information is available. I just wonder how that the doors wide open. Because sometimes someone is going to make another determination that could be based on other information. Im not i dont agree with you i think its well intended. It helps resolve differences between c d. But it doesnt give us a view of tomorrow. Were moving the ball down the field, how do we shut the door. I actually, in my opinion, i dont think we left the door wide open. Were very clear, as between the two proposals that we had put for public comment, one is a c approach and a d approach. We went with the d approach. The language as youre referring to then goes on to say that we didnt have full and complete information in a couple areas. One big area was our states would move forward we believe very strongly that the against of a clear consistent federal set of criteria coupled with the Planning Program and epas approval of that, will provide comfort and certainty with respect to those issues. We actually dont think that the door is open. I guess like you said earlier, were just going to have to agree to disagree on that, because i think its clear from business when you have that language that something can happen in the future the next administration can commit with a different attitude than you personally have had, it makes it uncertain. We need to just close that lets continue working together on that and see if we cant close that door on that. Yield back the balance. I reaffirm my and the epas commitment to continue to work with you and this committee on technical assistance, we also make clear on the preamble we would not do anything without any we think weve done a good job and provided protections. Any future changes like any rule is going to be subject to future process, it would have to require another proposal. Gentleman from pennsylvania, mr. Doyle is recognized for five minutes. Thank you, mr. Chairman. I want to thank you for convening this final hears many of my con sit u ants were concerned on the coal ash disposal, because of concerns it may limit beneficial use on one hand or protect the federal health on the other. Epa has protected beneficial reuse, and put in criteria that will ensure safe disposal. I would like to ask you a few questions. The final rule prevents or restricts does epas new final rule restrict use of coal in anyway . No, beneficial use is fully protected and not subject to the rule. Coal ash thats beneficially reused wont be subject to the rules . Thats correct. And in fact according to the final rule, 52 million tons of coal ash are beneficially reuses annually, can you tell us about some of the environmental ben firsts of recycling coal ash instead of sending it to a landfill . Sure, i mean saved energy costs. Reducing Greenhouse Gases, and reducing impacts to the environment, as well as tremendous economic benefits. Replacing virgin material with coal ash. Im going to move on to what weve been hearing a lot of discussion about. Youre going to hear a lot about the selfimplementing requirement for this rule i wanted to give you the opportunity. And i know you talked a little bit about it already on this concern that were creating a dual Regulatory Regime, potentially requiring owners and operators to adhere to the two set of standards. What does it mean when the epa will approve the state plans, and you say that theyll be approved as long as they demonstrate federal compliance. What does that mean . Can you what does that terminology mean . Sure, what states would have to do is to integrate the criteria into the state program. Any state plan that epa would approve would have within its plan the federal requirements, so theres no way the state would be out of compliance if youve approved their plan. That will be at the very minimum what the plan has to adopt, and they can do something over and above that . Thats right. The utility compliance perspective, once that approval happens, the states would have to comply with a single set of information. Have comfort that the epas approved. And made very clear, if the utility follows a state program, that is subject to epas approval, epa will deem that with the federal compliance criteria. If a state is off the plan. Theres no way they can be in compliance with the federal statute. They could be in compliance with the state one, has extra provisions . That is correct. You feel that addresses that concern about the regulation . We do. Thats all the questions i have, mr. Chairman, thanks. The chair now recognizes mr. Kramer for five minutes. Thank you, mr. Chairman, thank you. For being here and for your good work. I have one area im going to continue on this line of exploring a little bit on the selfimplementing piece. I spent a number of years on the north Dakota Public Service commission, carriryied the coal reclamation portfolio, the one thing that i heard a lot especially in whatever the case might have been. But whenever we were challenged in court we were plenty of times, and we always prevailed as a commission, not because lawyers were superior or anything like that although we have good lawyers, dont get me wrong, but because the courts in highly technical matters just always deferred to the experts, the Administrative Agency this selfimplementing thing makes me a little nervous and if it makes me a little nervous as a former regulator, i can only imagine how nervous it makes the industry. It seems to me we can tighten it up, and provide the certainty everybody is talking about, without comprising in anyway really the protections that were trying to accomplish, and in fact, i think should be to the benefit of everybody on all sides. Am i wrong there . Or is there a better reason to do it this way . I dont disagree with the overall views that will provide substantial way to the technical judgment of states and federal government. Precisely for the reason that you raise is the reason why were tieing these minimum federal requirements to an epa rule of a state program we believe very strongly, that the courts will look at that and provide substantial weight of that technical judgment of the combination of the states and epa. I understand all that, and i think thats noble. Cant we just go to the next step and tie it down so that were not relying on selfimplementation and then the discretion of multiple jurisdictions and multiple courts when we have the experts in what seems to be pretty relative agreement for this place, and then i think you get a lot of support. Thats really all i have. And i again, appreciate the hard work. The chairman recognizes the gentleman from california for five minutes. Thank you, mr. Chairman. How many tons of coal ash are produced in a year in this country. Any idea how much what fraction of that is used in beneficial ways . Not off the top of my head. I can get back to you on the actual numbers. Is there an opportunity for beneficial use of coal ash . Absolutely. How would that happen . What would it take for more beneficial uses to come about . I think probably tom adams is a better witness to ask that. I think clearly when weve discussed with the reuse manufacturers providing the certainty that i think we provide, it will be a first step into two expanding the beneficial use of coal ash. So thats a part of the rule thats been promulgated . Thats right. Okay. Im a little concerned about citizen lawsuits with regard to the rule or the potential relation that might come out of this issue how quickly do you think we will see improvements in the safety of the coal ash disposal sites as a result of the rule thats been promulgated. Immediately. The rule takes effect in six months from publication. Theres an early obligation like making sure you have a dust control plan in place. Make sure you begin the inspections. I think youll see some early improvement. A lot of these are things that are already done by the leading utilities anyway. I think it gives you more of a standardization around the country. And then as time progresses, roughly about 18 months some of the more structural issues will be addressed, those things that potentially contaminated groundwater, potentially have an impact on structural stability would be addressed. You expect the robust transparency provisions to incentivize compliance . Absolutely. All the studies show that the more disclosure of data and compliance in a very deep and granular way its an incentive, and it enables citizens adjacent to these facilities and states to monitor compliance. Do you think the citizens and states are going to buy the disclosures that the agencies are going to be putting on their websites . Do you think the people are going to buy it . Or do you think theyre going to revert to lawsuits to satisfy their concerns . Well i think that one of the reasons that we put in this Public Disclosure was, to respond to citizens requests of having detailed information, for example a groundwater data and how the groundwater data compares with whatever it is or is not exceeding protected standards. I do think that is going to add substantial value to compliance and oversight by citizens. Theres enough teeth then in your opinion in the compliance requirements that people will take satisfaction that theyre doing what theyre saying . We do. We do. The last question, is there a concern that if a committee passed the bill that was signed into law, it would stifle the beneficial use of coal ash or the safe disposal of coal ash . You think passing a law would stifle whats going to take place as a result of the rule . Well i really cannot answer that question today in a vacuum will what i can say is that we strongly believe the rule provides a protection as well as a certainty protection of the community is next to the empowerments. You know i really cant provide an opinion as to what the effect of legislation would be regarding this moment. I yield back, mr. Chairman. The chairman yields back before i yield back to mr. Florez, i want to ask consent that the letter of the u. S. Green Building Council be submitted for the record. Is there an option . Hearing none so ordered. Id like to recognize congressman florez for texas for five minutes. Thank you, mr. Chairman. Thank you for joining us today. I want to give you a quote and answer to the question of having multiple opinions of the judges. We dont anticipate any issues with that in that regard. Well take it from a real world perspective, any time that you dont have the right type of rule making that you will have that instability, if you will in the real world in terms of the enforcement process, not only could you have it among the states, you could have it in a state. You have multiple district judges that will make their technical opinions. I urge you to keep that under consideration as you move forward. This gets sent to the law, if you will and that is in terms of legacy sites. Walk us through how the epa believes that it has the authority to regulate legacy sites, and in particular, i need the specific reference to ricra, if thats what youre relying upon to make the rules. Clearly inactive sites at an active power plan the and active units at an inactive power plant has these same issues, coal ash, water, under those proposed commissions, impose the identical risk of structural failure and impact and communities leeching into groundwater, we believe because of those circumstance that ricra provides us the ability to authority and mandate that kind of protection identical units but for is not actively being used for disposal of coal ash. Lets take that to the next step when youre talking about those particular impoundments when you propose the application of location restrictions to existing surface impoundments, the epa acknowledged that these limitations would force the majority of these the current impoundments to close. You have an estimate of how many will close and moving further upstream from those closures, what sort of reliability does that reliability issues could be imposed on our grid. Well, i dont have that i can get you that information. I can get you that information. Just to be clear. You know the final rule provides location requirements. It does not begin with closure. It begins with examining all these location criteria proximity to wetlands, prom imty to groundwater aquifers. Then they will have to determine can they put in Engineering Solutions to provide those kind of protections. They would not automatically trigger closure. I can get you that data. I think that would be important, because i think in your rule you acknowledge that it will cause the majority of these to close, and i think that creates an issue in terms of reliability. Im not sure if thats correct. Ill check that and get back to you. To the extent that an operator grants itself an extension. What do you think the impact will be in terms of citizen lawsuits and the instability lets just say the instability or the lack of clarity that that causes for our an operator. Well, because weve gone out we visited numerous coal ash plants around the country, we reviewed information from utilities about the different dimensions. Some are going to be more challenging to close than others. We do put in place in a very specific way those circumstances where they can provide enable themselves extensions. We think the rule itself provides that ability to extend whether circumstance justifies that, that will be coupled with obviously the utility disclosing the circumstance. But once you follow that, they will not be a violation of the federal rule. Therefore no citizen litigation would follow then . Yeah, we dont believe it would be a basis in that circumstance. Thank you, i yield back. The chair recognizes the gentleman from ohio who is involved in pushing this legislation in the last couple congresses. Thank you mr. Chairman mr. Administrator, thanks for being with us today. If i can go back and know theres been a lot of discussion already on beneficial use of coal ash, and weve had different panels in here over the last couple years talking about it we want one of the things i know you mentioned earlier, when you said in your testimony approximately 40 of ccr is beneficially used but again, in the testimony that weve heard, you know, we have states out there that are saying, boy, if the epa would ever change its mind, were going to require buildings to have things ripped out or Something Like that you have School Districts saying we dont want to use material that might in the future have some kind of epa coming back and saying, that it could be hazardous, when you use the term certainty that youve mentioned. What is the certainty that the epa can give to folks out there that theres not going to be a change. If its material thats being used inside of a building, that a lot of folks are worried about, School Districts are worried about. How do you define certainty, and how do you make sure that the folks out there have that certainty of mind that the epa is not going to change in a couple years that theyre defining as a hazardous or nonHazardous Material. Even before the finalization of the rule, because of this issue of certainty and risk, and comments that we received for the beneficial use industry we first began by developing a methodology, to evaluate the continued use. We used that and applied it and confirmed that a concrete and wallboard, the largest two uses can continue to move forward. We believe that provides a significant certainty. Tom adams can speak for himself later on in the panel. Secondly, we also heard that this cloud some advocates have noted the cloud of uncertainty of not finalizing the rule, continues to have create some uncertainty. Our decision to go with a deep proposal as opposed to the sea proposal provides a second set of certainty. And the c proposal is no longer on the table. So we actually believe that we provide a substantial certainty to the market. Ill let tom talk more. When you talk about the methodology. How do you go about that . Whos at the epa . Whos sitting down at the table to really come up with the methodology to come forward with that standard . Or what that should be set at . Weve engages the beneficial users in the development of the methodology. This is a methodology to be used by users, by manufacturers or by states to confirm that a product that uses coal ash as opposed to a product that doesnt use coal ash are comparable. And, so, therefore it can be safely used to replace virgin products. We think that the methodology has been well received in the marketplace, and on application of the methodology to these specific uses like concrete and wallboard has been received. Thank you, mr. Chairman in the interest of the second panel, im going to yield back the balance of my time. I thank you for that. The chair recognizes the other gentleman from ohio, mr. Johnson for five minutes. Thank you, mr. Chairman. And thank you mr. Director for being with us this morning. Let me i want to get a clarification on something you said earlier, so the state program does not operate in lieu of the federal program, correct . That is correct. If the state program does not operate in lieu of the federal rule, then both sets of requirements are still enforceable, correct . Well, that is precisely, because weve heard those comments during the public process about the possibility of precisely that. That is why we strongly believe that theres a vehicle to integrate into a state program and have epa approve that state program, to have that alignment occur. For corrective action, the final rule requires if a constituent of concern is detected above a statistically significant level, that the Groundwater Protection standard must be set at either the maximum containment level or at the background concentration. Whereas at proposed rule like the Municipal Solid Waste Program would have allowed the operator, the Owner Operator to establish an alternative Groundwater Protection standard based on Site Specific conditions. So how does the epa anticipate that this will impact ongoing corrective action at coal ash disposal units at states that utilize risk based Decision Making . We believe the risk based Decision Making that is core to a cleanup. What weve done in the rule is we brought the various factors used in the program to do exactly what you noted, to consider the size specific factor. We always begin with protecting the groundwater, then when you go and look at the specific cleanup remedy that fits a particular situation, you evaluate the various technical factors, determining the cleanup that is most appropriate to achieve the cleanup effort. That ability to establish an alternative Groundwater Protection standard based on Site Specific conditions that would still be there in your view . What utility would do is look at the various factors no different than establishing the cleanup option that best fits. Ill just leave it at that. Okay. Going down to closure, if the owner or operator puts forth a realistic closure plan and indicates that the Facility Needs more than the required amount of time to close in a safer and appropriate manner, technically the plan doesnt meet the deadline. Is the owner or operator out of compliance with the finer rule in that case, and at what point is the Owner Operator subject to lawsuit when it puts out the plan with the longer closure date or when it actually doesnt meet the fiveyear deadline . You have an Owner Operator that says, its going to take me longer than the rule allows to do it properly, what happens . That was a we received numerous comments on that topic. We believe the five years is adequate for many of the units. There are going to be some units, because of the size, because of the particular geology is going to require some additional time. In the rule we built in that opportunity. If a utility can demonstrate that those conditions exist. And we articulate various time lines so they can avail themselves of the additional time lines set forth in the rule. So we can get to the second panel, i yield back. The chair recognizes the member of the subcommittee for five minutes. Thank you for having this hearing. I would like to ask you your do you have a technical background . I do. What would that be . Im a chemical engineer before i became a lawyer. They dont cancel out. I think they go well together. Thank you very much i appreciate that. When were talking about epa and talking about regulations, especially when it comes to coal ash, i think theres some science that goes into those decisions, correct . Evaluation and understandings, and even beyond science per say, it goes into probabilities and cause and effects and things of that nature, correct . Yes, sir. Im glad to know that you have that engineering background. I wont speak of your law degree, at least engineering background. Im not a lawyer but im a background. When it comes to the epas new rule of the ponds in protecting all the communities that live with this potential risk. First of all id like to applaud the epa for moving forward. But also, this effort is important especially because, has it been determined or evaluated by the epa as to who most likely is effected by is it more anewffluent communities . Is it a disproportionate effect when it comes to communities that are effected . Yes, im not sure we have a specific analysis. Clearly communities that are adjacent to these facilities that are impacted by catastrophic failure, contaminated Drinking Water. I know that in the los angeles basen, if you just look at the geographic area, and income demographics there is a skewing of one side of town has a lot more activity where this might take place and the other side of town which might be more affluent doesnt have any activity, at the same time, maybe none of that activity for zoning purposes and activity permits and things of that nature. Im reflecting on what goes on in the l. A. Basin. And even with coal ash by the way, specifically not just coal ash, but other elements as well. One of my questions to you, can you describe some of the ways this will make coal ash safer for vulnerable communities sur rounding them . Sure. It begins with trying to prevent a catastrophic failure. The incident occurred essentially destroyed the community, caused about 1. 3 billion. It contains a rigorous set of requirements to prevent those kind of things, regular inspections, structural evaluation, and based on the valuation, empowerments will either enhance the structural stability or they cannot they would have to close that facility. Preventing groundwater begins with putting in place a comprehensive program of Groundwater Monitoring, the Groundwater Monitoring exceeds protective standards immediately moving forward on cleaning up the groundwater. And in situations where online impoundment sees the Groundwater Protection standards, they would have to close. The other big issue is dust. Many communities about coal ash dust. We put in place a comprehensive program to control a coal ash test for migrating communities. Now, the epa when you make this rule how do you come about it, and too many people in my opinion keep thinking any time you have regulations theyre trying to hurt business. I mean what kind of effort goes into making sure you strike some kind of balance and understanding of whats going on in the real world, and what should happen to create the Public Safety requirements that we should have should we have standards in the United States of america . Sure i mean we began listening and evaluating, what we see from everyone. Clearly the communitys impact. We have to have an implementable rule. And so we look at the pragmatic issues of how can it be implemented in a realistic way. We think its a protective rule and a rule that is pragmatic and considered on the ground construction issues. So youre not just going into this blindly without understanding and appreciating whats going on in the real world on the day to day effects of a particular industry . Thats right pretty much day driven from all stakeholders. Commerce is something thats taken into account as to the flow and the effects of commerce when these decisions and or these processes are discussed . Oh, sure. We want to make sure that again the challenge of closure and the relative size of that, and also kind of avoiding the billion dollar consequence of this catastrophic failure. All of that goes into consideration. Are there more examples outside the United States of incidents, catastrophic incidents. More than in the United States so far, as your data and Research Shows . Yes i was basing it purely on the u. S. Information i dont know the answer to that question. What i would like to recommend, i know that i dont think its beyond your per view to understand whats going on in the rest of the world. Especially since the world is getting smaller with all this international commerce. I think its important for us to understand as americans how having regulations here that dont happen in other parts of the world, how people are affected when they dont have that. I think as americans were spoimed by what we dont see, and the regulations that do in fact protect us, if a point of personal privilege i would like to correct myself we dont have coal ash in the l. A. Basin or in california, i was thinking about the piles of coke that we have in the l. A. Basin. I apologize, and want to correct myself. Thank you so much. Youre more than welcome. Its great to have you on the subcommittee. We could provide you some coal ash if you would like in the l. A. Basin on some railcars, how about that . We want to thank you for coming again great work. Well listen to the second panel, see what i would expect we would fry to maybe look at some of these tweaks weve heard about today, and with that, well dismiss you and impanel the second panel. Thank you very much for coming. As our second panel is being seated for the sake of time, im going to ive done this numerous times, i always mess up, so i think ill just do the introduction of each person right before they give the five minute Opening Statement. Our panelists all know that their full statement is submitted for the record. And just based on time and we dont know when the votes are, we wont be mean about the five minutes, but wed like for you to adhere to that as best as possible. With that, im going to turn to the second panel and first, mr. Thomas easterly, who is the commissioner of Indiana Department of environmental management, were very happy to have you here sir, youre recognized for five minutes. Thank you chairman and ranking members of the subcommittee. Good morning, i am the commissioner of the Indiana Department of environmental management. I bring greetings from the governor of indiana also. We appreciate the opportunity to share indianas views on the rule, which we call ccr on occasion. Im representing the Environmental Council of the states which we call ecos whose members are the leaders of the state territorial Environmental Protection agencies. They have worked on the cco resolution for many years it was first passed in 2008, has been reaffirmed as recently as 2013. While epas final rule responds to some of the concerns outlined in the resolution you can other long time state concerns remain addressed. As an initial point i express agreement with the epas coal ash is not a Hazardous Waste. Epas use of subtitle d for coal ash is consistent with ecos resolutions. Ive observed the firsthand tragic results of the failures. They devastate peoples lives destroy property and contaminate natural resources. The epas selfimplementing rule contains Robust National Structural Integrity provisions which should result in a meaningful reduction in failures in the future. The rule also creates a consistent national set of requirements, many of which are already in place, in various states to prevent adverse environmental impacts to our water and air. Units unable to meet the new criteria will have to close so they will be solving a problem. Most important to item and other states is that epas final rule explicitly recognizes the state regulatory agencies currently have, and should continue to maintain in overseeing ccr, however, by finalizing the selfimplementing rule, that can only be enforced through recra the rule of state oversight and enforcement will be minimalized. The key state rule in this program will be maintained by states amending their Solid Waste Management plans. Epa expects that once approved by epa, the amended plans will receive deference by the courts. The requirements are selfimplements, the rules schedules would require states to achieve final safe Waste Management. In order to ensure transparency, indianas laws require my agency item to have four Public Notices with associated Comment Periods for new regulatory action. This public procession normally takes at least 18 months. Yet some of the selfimplementing deadlines in this regulation are as short as six months, making it impossible for indiana to have regulations in place yet after the state plan is amended and approved by epa. The new ccr rules will remain independently enforceable for citizen suits in Federal District courts. The epa does not have the Legal Authority under subtitle d to delegate the new rules to the states. I would now like to address the need for the legislative amendment to recra on ccr issues. Ecos testified before this committee in april 2013 in support of the bipartisan efforts in the house and senate, to create a federal program that allows states to regulate coal ash management and disposal under a set of federal standards created directly by congress and implemented by the states. Legislation still would be beneficial in several ways to achieving this goal. First, legislation could codify epas determination that coal ash is not hazardous and get the going back and forth concern done goingforward ever. The state program cannot operate in place of the federal program. The legislation can add to the plans by making clear the criteria, epa would apply whether the state term meets the ccr standards. And fourth, legislation could enhance and collar phi enforcement of ccr requirements. Mr. Chairman, mr. Ranking member, and members of the subcommittee subcommittee, i thank you for the opportunity to present my views and those of ecos to you today, and im happy to answer any questions. Thank you very much. And i failed to do it well do it with mr. Forbes. You represent the Environmental Council of the states, they have been very helpful. Now, ill recognize for five minutes, mr. Michael forbick Environmental Program management from the Pennsylvania Department of Environmental Protection bureau of Waste Management and on behalf of aswamo. Youre recognized for five minutes. Good morning. My name is michael forbick. Im president of aswana. Im here to testify. Aswamo represents 50 states, five territories and the district of columbia. State Program Experts for the regulation and management of solid and Hazardous Waste. Thank you for the opportunity to provide testimony on the epa final rule disposal from electric utilities. The rule making has been of a longstanding importance. We were very pleased to see on our informed agreement the final rule under subtitle d of the resource conservation recovery act. To focus my testimony, the issue of dual state and federal regulatory authority, we see as a result the selfimplementing construct construct. Were not offering testimony on specific technical requirements in the rule, as groups with aswamo looking at these as well as beneficial use components, we will have specific provisions at a later time. Epa has issued the rule under subtitle d part 257 which is selfimplement selfimplementing. The statutory basis for 258 governing municipal landfills allows states to incorporate the federal criteria and for epa to determine whether those permit programs are add quality to ensure requirements with criteria. In aswamos compliments to epa, we pointed out that selfimplementing standards would set up a dual state and federal Regulatory Regime for owners and operators that would be problematic for the effective implementation for the ccr facilities. Explicit language that epa views compliance with the state program that meets or exceeds the federal minimum criteria as compliance with that federal criteria. We appreciate dual state and federal regulatory short and their efforts working within the bounds of their Statutory Authority to provide a mechanism through the state salt Waste Management plans to address our concerns. We see difficults with the state salt plan mechanism. One is timing. By amending their salt Waste Management plans the process would have to be within six months of the date of publication, the final rule and the federal register. This is insufficient time since a potential lengthy Public Participation process involved in the submission of state plans under part 256 could preclude a timely approval. Even if it went smoothly. So there would still be dual, state, and federal implementation for a time period past six months. Salt Waste Management plans also fall short on full state implementation because even after passage and approval of the plans, as stated in the preamble of the rule, epa approval of the state Solid Waste Management plan does not mean the state program operates in lieu of the federal program. In the preamble, epa states the facility that operates in accordance with approved salt Waste Management program will be able to beneficially use that fact in a citizen suit forced in the criteria. This is speculative as no one with absolute certainty can expect a courts decision. Citizen substitutes in different jurisdiction could lead to different rulings. There is also a concern that more sections of the salt Waste Management plan to incorporate ccr rule would be reviewed by epa and potentially require additional revisions to the state plans that may be beyond the scope of ccr. We believe the legislation such as hr 2218 that was passed by the house in the last congress would provide for the certainty of state primacy in implementation through state permit programs for ccr enforceable by the state and provide a clearer and sint understanding of the rules of the state. State programs would have the additional benefit of allowing flexibility for states to have regionally appropriate state standards. In conclusion, we appreciate epas decision to regulate ccrs under subtitle d and providing a mechanism within the confines of part 257 for implementation of the rule by the states. However, the revision of the salt Waste Management plan does not fully eliminate dual implementation of ccr Regulatory Programs. We look forward to working closely with the epa and Congress Regarding the 22ccr 2218 regulation. Thank you for the opportunity to provide this testimony. Ill be here for questions. Thank you very much. Next wed like to recognize ms. Lisa johnson. I have a lot of cop cooperatives and we appreciate what you do. Thank you, mr. Chairman, and good afternoon. My name is lisa johnson, and i am the ceo and general manager at Seminole Electric cooperative in tampa, florida. Its one of the largest, not for profit cooperatives in the country. Seminole is owned by nine not for profit consumer operatives. We provide safe, reliable, competitively priced electricity to more than 1 Million Consumers and businesses in parts of 42 florida counties. On behalf of seminole and the National Rural electric cooperative association, i would like to thank you for your time this morning as i present our testimony on this important issue. Seminole would like to acknowledge that we support the Environmental Protection agencys decision to designate coal combustion residuals as nonhazardous. The epas approach supported by data from its own investigations balances the need to protect Public Health and the environment without creating an undue burden on affected facilities. Even with a nonhazardous final rule, we are seeking your support to provide additional legislative certainty. Seminole owns and operates seminole generating station, or sgs, a coal power plant employing nearly 300 hardworking, skilled floridians. Sgs has more than 530 million of Environmental Control equipment. Seminole generates approximately 800,000 tons of ccrs per year. However, seminole recycles more than twothirds or roughly 550,000 tons per year of our ccrs to produce wallboard, cement, and concrete block. At sgs, one ccr material is converted into Synthetic Gypsum and sold to Continental Building products. They were constructed in 2010 to utilize the gwpsum from sgs since 2000, more than 7 million tons of this ccr material has been converted into wallboard. Seminole also recycles all of the facilitys bottom ash to manufacture cement and stronger, lighter con freet concrete block. If not used beneficially, these byproducts would have been placed in a land fill. In 2009, seminole received a sustainable Leadership Award from the council for sustainable florida for our beneficial reuse of ccrs. And sgs was named one of the top six coal plants in the world by power magazine for our recycling practices and environmental accomplishments. One of seminoles most important goals is to operate our power plants in a safe, environmentally responsible manner and in full compliance with all permits issued by the Florida Department of Environmental Protection and the epa. Bringing us to one of our concerns with the new rule. While epa will now regulate ccrs as nonhazardous, the rule is selfimplementing, which means facilities covered by the rule must comply with the federal rule regardless of adoption by the state. For example, should florida adopt the epas final rule, the federal rule also remains in place, creating dueling Regulatory Regimes. As a selfimplementing final rule, the typical method for a state or Citizen Group to check compliance at a facility that may or may not be adhering to the rule is to file suit against the facility. This could result in frivolous and costly legal disputes in Federal District courts where the resulting interpretations and penalties could vary significantly. For not for profit electric cooperatives, this is especially troublesome as any costs incurred must be passed on to the consumer owners at the end of the line. We ask you eliminate the legal double jeopardy aspect of this rule if a state fully adopts the epas new final rule. The next major concern we have with the rule is the complete lack of certainty that ccrs will continue to be regulated as nonhazardous. For seminole, this is extremely problematic, as a major component of sgs design is based on our Environmental Control systems and our recycling practices. Should epa decide to regulate ccrs as hazardous at a later time, seminole would be forced to dispose of ccrs, turning a beneficially used product into an expensive land filled waste stream, driving up the cost of electricity for our cooperative consumers. On numerous occasions, the epa has determine the that ccrs are not hazardous and there are no new findings to justify a change in epas determination. We ask that you end the continuous reevaluation process and confirm that ccrs are and will continue to be regulated as nonhazardous. For seminole and other affected facilities, we are seeking regulatory certainty so that we can continue to provide safe, reliable, and affordable electricity while fully come plying with all applicable rules, regulations, and laws. On behalf of seminole and nreca, i thank you for the opportunity to meet with you today and share our views on this very important rule. Thank you very much. Now id like to turn to mr. Thomas adams, executive director of american coal ash association. On behalf of seminole and nreca i thank you for the opportunity to meet with you today and share our viewing on this important rule. Thank you very much, i would like to turn this to mr. Thomas adams now, youre reck needs for five minutes, sir. I am the executive director of the american coal ash association. Id like to thank you for the opportunity to come and speak to you and the subcommittee today about one of americas greatest recycling Success Stories and how that continued success depends on regulatory certainty. The acaa was established almost 50 years ago to advance the beneficial use of coal combustion products in ways that were environmentally responsible, technically sound, commercially competitive, and supportive of a sustainable, global community. Were not a largetrade association. Were not based in washington, d. C. Were headquartered in farmington hills, michigan, and have a staff of two fulltime employees. We rely on volunteer members to accomplish our work, which is mostly technical. Id like to emphasize that while we have some of the largest utilities in the countries as members, most of our members are Small Businesses, comprised of people who have dedicated their entire career to the cause of beneficial use and improving our environment. It is these Small Businesses that were hurt most by the regulatory uncertainty epa created in 2009 when it suggested the possibility of Hazardous Waste designation for coal ash management. There are many good reasons to view coal ash as a resource rather than a waste. Using it conserves natural resources, saves energy, and significantly reduces Greenhouse Gas emissions from the manufacturing of products that it replaces. In many cases, products manufactured with coal ash perform better than products made without it. For example, the american road and Transportation Builders Association determined that the use of coal ash in concrete roads and bridges saves departments of transportation across the country over 5 billion per year. Its important to remember in this conversation that coal ash has never qualified as Hazardous Waste based on its toxicity. It does contain trace amounts of metals. Those metals are found at similar levels in soils. A Study Released in 2012 analyzed data from the u. S. Geological survey. Despite a drum beat of publicity by anticoal environmental groups, coal ash is no more toxic than the manufactured Material Products it replaces. Unfortunately, this discussion has had real negative consequences for the use of coal ash. When epa began discussing a potential Hazardous Waste designation in 2009, the agency cast a cloud over beneficial use that caused coal ash users across the nation to decrease beneficial use activities. The volume of coal ash used since 2008 has declined every year since that year. The decline in beneficial use stands in stark contrast to previous decades trend when in the year 2000 the recycling volume was 32. 1 million times. At the time when the epa issued its final determination that its Hazardous Waste was not warranted. Over the next eight years, coal ash beneficial use skyrocketed to 60. 6 million tons in almost a 100 increase in the use. According to the most recently released data from 2013, 51. 4 million tons of ccps were beneficially used, down from 51. 9 in 2012 and well below the 2008 peak. The great irony of this lengthy debate over coal ash disposal regulations is it caused more ash to be disposed. If the past five years had remained equal to 2008s utilization, we would have seen 26. 4 million tons less coal ash put into landfills. The acaa appreciates epas final decision to regulate coal ash as nonhazardous. We believe this puts science ahead of politics and clears the way for the beneficial use of coal ash to begin growing again, thereby keeping millions of tons out of landfills and ponds in the first place. Were also painfully aware, however, that epa has made final decisions before only to reverse course in the future. A hazardous versus nonhazardous debate occurred prior to the agencys final 2000 determination, which eight years later turned out to be not so final. Additionally, the final rules preamble states with respect to ccr that is disposed in landfills until Additional Information is available in a number of key technical policy questions. Apparently 34 years of study, two reports to congress, two formal regulatory determination, and a final rule issued after sixyear rule making process may not be enough for epa to make a truly final determination. Bills previously passed by president house would resolve these issues permanently. The bills would put enforcement Responsibility Authority in the hands of professional state regulators. Acaa supports this approach as better public policy. Wed like to thank you, mr. Chairman, for this committees diligence in addressing this issue. We believe its important to keep beneficial use at the fore front of u. S. Coal management policy. The best solution to disposal problems is not to dispose. Thank you very much. Chair now recognizes mr. James rower, executive director of solids waste on behalf of the Edison Electric institute. Welcome, sir. You have five minutes. Good morning, chairman. I am executive director of the utilities solid waste activities group. I am pleased to present this statement on behalf of the institute and the American Public power association. We support epas decision to regulate coal ash as a nonHazardous Waste, a decision which is consistent with the rule making record and with epas previous regulatory determinations that coal ash does not warrant regulation as a Hazardous Waste. Our longstanding position is that epa should develop a Regulatory Program for coal ash patterned after the federal regulations in place for municipal landfills. They would encollude design standards, dust controls, corrective action, as well as structural stability controls for coal ash surface impoundments. However, while we support epas regulation of coal ash as a nonHazardous Waste, there are serious flaws in the new rule due to statutory limb limitations. The only exception are the provisions under which epa issued municipal solid Waste Landfill rules, which are enforceable through state programs. Were left with a rule that cannot be delegated to states and in which epa has no enforcement role. Because the rule cannot be delegated to the states, its selfimplementing and relegated facilities must comply with the requirement. Irrespective if it is adopted by the states. Even if adopted by a state, the federal rule remains in place as an independent set of criteria that must be met. Epa is clear on this point. It cannot the state program cannot anticipatory in lieu of a federal program. This will result in dual and potentially inconsistent federal and state requirements. Most troubling, were hearing some states might not even attempt to adopt the new rule, which will guarantee dual regulation. In addition, the rules only Compliance Mechanism is for a state or Citizen Group to bring a citizen suit in Federal District court. This means legal disputes regarding compliance with any aspect of the rule be determined on a casebycase basis around the country. Federal judges will be making complex technical decisions regarding Regulatory Compliance instead of allowing these issues to be resolved by regulatory agencies that have the Technical Expertise and experience necessary to answer such questions. This is likely to produce differing and inconsistent decisions regarding the scope and applicability of the rule depending on where a citizen suit is brought and will undermine the uniform application of the rule. This is not a sound strategy for implementing a complex federal Environmental Program that has such significant implications. Because the rule is selfimplementing, epa dropped riskbased options in the ground Water Monitoring program and for conducting cleanups. As a result, the federal rule effectively overrides existing state riskbased Regulatory Programs for coal ash that have been proven protective of human health and the environment. Some of our members are in the middle of implementing a longterm sitespecific closures or cleanups for coal ash facilities. Were concerned the federal rules lack of recognition of state riskbased closure may negate these efforts. Impoundments no longer receiving coal ash but which contain water and have not closed. We fully appreciate an active site may pose risks, however, we do not believe the epa has the authority to subject past disposal practices to regulations designed for active units as the agency has done in this rule. If epa wants additional authority, we believe the statute must be amended to grant epa such authority. Finally, the rule does not provide the desired certainty that coal ash will not be regulated as a Hazardous Waste. Epa makes clear that it will at some point in the future issue a new regulatory determination regarding whether coal ash warrants Hazardous Waste regulation. While epa has for now settled on the nonHazardous Waste option, the agency leaves the door open to revising the rules and regulating coal ash as a Hazardous Waste. The e pa makes clear they will decide if it warrants hazardous regulation. While they have now settled on the nonHazardous Waste option. This raises eers kprns. They will invest huge amounts to contemplate the new rule. It could effect ily negate this huge capital expenditures. We need regulatory certainty. This rule does not provide that. I would like to thank the Sub Committee for the sunt to present these views and i would be happy to answer any questions. We now recognize mr. Eric schaffer youre recognized for five minutes. Thank you, we work with citizens that will live and work around ash sites. I would like to speak to what certainty might mean to those people. Some people have been living with this problem if a very long time first, i really dont think the folks in these communities care when you call it hazardous or peanut butter. They want coal ash out of their ground water. They dont want it in their lungs. And they would rather not have 39 million tons of it dumped in their river as duke energy did to the good people of North Carolina less than a year ago. We hear those kinds of problems are things of the past, they arent going to happen again. Ill return to that, but obviously they did happen. So really the question is whether epas rule or Anything Congress does gives people most affected by coal ash pollution the kind of certainty theyre looking for. I just want to point out that this issue has been bumped around for about 30 years. In that time, a lot of these disposal sites, which are nothing more than holes in the ground, have deteriorated. The cost of responding to spills and the results contamination from just Six Companies now exceeds 10 billion. Thats based on securities and Exchange Commission disclosures. That number is going to climb whatever happens. 30 years of no regulation, a bill comes with that. That bill is coming due. Touching briefly on the rule, like everybody here, we like some parts, we dont like others. Not too unusual for an epa outcome. The structural stability requirements could be helpful and could prevent the kind of catastrophic spills weve seen. I do have to say it has some big loopholes. Theres no cleanup standard for boron. Z thats one of the most pervasive pollutants, and its found at levels far above Health Standards at many coal ash sites. Also, its important to understand nobodys going to get wind burn complying with the deadlines in epas rule. Some of which stretch literally from here to eternity. This is not a fastpaced set of standards. Id encourage you to look at those deadlines. Before moving forward, i would respectfully ask that you consider two things, two actions. First, i think you should invite duke energy to appear before this subcommittee to talk about the spill that happened less than a year ago. Because its important to get an understanding of the problem before turning to the solution. You can then, with that information, decide whether epa has addressed the problem. Heres what is duke said in 2009. We are confident based on our ongoing monitoring, maintenance and inspections that each of our bases has the Structural Integrity necessary to protect the environment. If you called in duke energy, you could ask them about dan river, because a statement was made about dan river. So what the heck happened . Is it going to happen again . Are you certain its not going to happen again . And how are you certain . North carolina passed a law in the wake of that spill that required shut down of active ash impoundments at active plants in less than four years, a lot faster than epa requires. Duke energy supported that bill. You might ask them why they supported that and why those requirements wouldnt apply in a place like indiana, where duke also has plants. Thats certainty. They have to close by dates certain. Couldnt be clearer. I would also hope that you consider giving citizens who are affected by coal ash pollution a chance to speak to you directly without interpreters, without lobbyists. Id gladly give my seat up to you could hear from them. Im sure jim would do the same thing. You could hear from them directly about what its been like and ask them what kind of certainty theyre looking for. I think youll hear that like the certainty that leaking dumps will be closed and cleaned up sometime in their lifetime. I think youll hear that. Many of them have been waiting a long time. I think theyll want the certainty they wont get stuck with the bill for that cleanup. Theyd like the certainty their ash pond is not going to collapse and fall on top of them and dump ash into the river. I think theyd like certainty they can bring their own legal action if the state doesnt do anything. I think youd hear that, but let them tell you directly. I say in closing, these citizens have worked on these issues for a long time. They really do deserve to be heard from. I hope youll give them that chance. Thank you. Thank you very much. Last, and you all have done a great job. Last but not least, mrs. Holman, senior attorney for the Southern Environmental law center. Welcome and you have five minutes. Thank you, mr. Chairman. I think check. Yeah, there should be how about that . Does that work . I think so. Good. Well, thank you, mr. Chairman, and other members of the committee for the opportunity to be here. My name is frank holleman. I live in greenville, South Carolina. Im at the Southern Environmental law center. We work with local citizens in the south concerned about their natural resources. A Committee Like this in washington usually hears from representatives of Government Agencies and trade associations. Today i want to convey to you all the concerns of local people who want to see their communities prosper and their local rivers protected. Lets look for a minute what were facing in the southeast. The utilities have dug unlined pits in wetlands and right beside our Drinking Water resources. They have put millions of tons of industrial waste containing toxics like arsenic and lead into these unlined pits and they have filled them full of water. These millions of wet tons of waste are contained only by earthen dikes that leak. The toxic substances in this industrial waste leach into the ground water, which then flows into the rivers and towards neighborhoods. This situation is made worse because most of these pits are decades old, and their infrastructure is rotting. We have had two catastrophic failures from this coal ash storage in the south. By tva at kingston, tennessee, and by duke energy in the dan river in North Carolina and virginia. One local water system is being forced to abandon public Drinking Water wells. Fish have been killed in the hundreds of thousands. Property values of nearby landowners have been affected, and ground water has been contaminated with substances like arsenic. My main point is this today. That congress should not take away from should not take away the rights of local communities to protect themselves from this dangerous coal ash storage. Congress should not leave the future of these people to government bureaucracies alone. The citizens right to enforce a new epa rule is essential. Now, what we have seen in the southeast is clear. The state agencies have not effectively enforced a law against these politically powerful entities. Let me give you examples. In South Carolina where ive spent virtually all of my life, it has been clear for years that unlined coal ash storage by our three utilities violate any pollution laws. Yet, no Government Agency had taken action to force a cleanup. Local organizations instead enforce the law with the result today that all three utilities in our state are cleaning up every waterfilled, river front coal ash lagoon they operate in the state, and they are creating jobs, promoting recycling, and one of our utilities calls these cleanups a winwin for all concerned. In North Carolina, nothing was happening to force duke energy, which has a statewide monopoly, to clean up its coal ash lagoons. Local community organizations, not the state, had to take the initiative to enforce clean water laws. For the first time North Carolina was forced to take action and confirmed under oath that duke energy is violating state or federal clean water laws or both everywhere it stores coal ash in the state and under oath that this polluting storage is a serious threat to the Public Health, safety, and welfare. Now a federal criminal grand jury is investigating both duke energy and the state environmental agency. And as a result, duke has pledged to clean up four of its 14 sites and to look at all the rest. In tennessee, tva continues after kingston to store coal ash in unlined polluting pits. Local citizens groups enforce a clean water act, and only in response to that pressure, the state of tennessee has now confirmed under oath that tva has been and is violating tennessee environmental laws by its coal ash storage on the Cumberland River near nashville. In the south, we have seen that the people must have the power to protect themselves and to enforce the law. The citizens right to enforce a new epa rule is a principle reason to have hope that these minimum federal criteria will play a role in cleaning up a legacy of dangerous coal ash storage in our southeast. Thank you. Thank you, sir. Ill now recognize myself for five minutes for the first round of questioning. The first question is for ms. Johnson. How would your company make compliance decisions if the Florida Department of Environment Protection sets requirements that are not exactly the same, even if they are more stringent, than the final rule . Thank you, mr. Chairman. It would be a challenge. Clearly we would have to comply with both sets of rules, and whatever the requirements would be, if one was more stringent than the other, we would look to comply with the stringent rule, except in this case, we would know that there would be the potential of having both Regulatory Regimes competing with each other for our compliance. Not to mention the fact i think that makes us vulnerable as the operator of a facility to thirdparty lawsuits that may question which regulation is the leading one. So it would be very challenging. And for mr. Rower, because it is selfimplementing, epa eliminated much of the flexibility of corrective Action Program as exists under other subtitle d programs. Could you please walk us through what flexibilities were eliminated and what that would mean for closure and corrective action. Thank you. There are a few instances where the agency had contemplated a different approach to allow for potentially a riskbased decision to establish a point of compliance. For unlined units, to even engage in corrective action, the agency recognized that the Regulatory Oversight from a Regulatory Agency wouldnt be there under a selfimplementing rule. Instead, were faced with this selfimplementing rule. They take away a lot of the tools the state regulatory agencies have in prescribing cleanups and prescribing corrective actions. Yeah, and go back and briefly explain this riskbased Decision Making, what it is and how it may be incorporated into a state coal ash program. A state could take into account whether there is a receptor gown gradient from the facility. Youre seeing a release, but is it, in fact, presenting a risk to human health and the environment. And they can take that into account when theyre making a decision about whether corrective action is needed to be what type of corrective measures must be implemented by the utility. In your opinion, would epa be able to approval a state program that incorporated any of the flexibility for corrective action, including a riskbased Decision Making process . The rule is rather clear about what you have to achieve in corrective action. You must meet that standard. If you dont meet that standard, you cant. Id have to answer, no. I couldnt see how epa could stay a state program that incorporates that riskbased Decision Making is the equivalent of the federal rule. Thank you. Mr. Forbeck, as an experienced state regulator yourself, i presume you have spoken with your counterparts in other states. Can you share your initial thoughts on the final rule n particular the implementation. Well, as i testified, we have a real issue with the implementation because we feel it still would be a dual process. It would be very confusing for the states. They have to decide whether or not, one, theyre going even to open up their Solid Waste Management plan, and even if they do, will that really even alleviate the dual Regulatory Regime . We do not think it will. And who testified in their Opening Statement because we have a big panel about the six months required under the that was that was yours. And some states might take 18 months to do their solid waste plan based upon the laws in the states about hearings and notifications and the like. Thats correct. The issue is its not just a simple fix that we open up the plant thats approved. Its a Public Participation process, which is fine, but that will take some extra time. And finally, my last question is for mr. Easterly. Your written testimony states that the opening and approval of a state Solid Waste Management plan must be completed on an aggressive schedule that indiana cannot meet. Can you explain why that is and whether you expect that would be a problem other states might have as well. And tell govern pence hi for us. Yes, other states will have that problem. Some states may or may not have the right authority. Some states, the rules have to go through the legislature before they can actually go into effect. In my state, i have to publish a first notice with a 30day Comment Period that im going to do a rule. A second notice with the words of the rule in it with another 30day Comment Period. Then i have to publish a notice of a hearing in front of the environmental rules board for preliminary adoption. Then one for final adoption. Then the attorney general gets days to review it. The governor gets days to review it and the secretary of state publishes it. It takes 18 months. And i thought we were bad. The chair now recognizes the gentleman from new york for five minutes. Thank you, mr. Chair. Welcome, everyone. Unsafe disposal of coal ash exposes risks to humans. The number of cases cited in the epa final rule is more than ample proof that current regulation isnt working for many communities. In 2009 this subcommittee held a hearing on damage from coal ash disposal. We heard from victims who lost their homes, their businesses, and their health to coal ash contamination. The time since that hearing, problems have continued. Hopefully the implementation of this rule will reduce the costs going forward. For today, i would like to focus on a recent highprofile damage case and what it can teach us about compliance and about enforcement. Mr. Holleman, can you tell us a little bit about the dan river spill . Yes, it has been a real tragedy and how it happened illustrates how state enforcement and utility oversight by itself has not worked. Let me tell you why i say that. The basic cause is the dan river site is an old site like virtually every one in North Carolina. You have these old pits. Somebody in the course of constructing that site had the bright idea of putting a storm water pipe under one of these coal ash lagoons. Back in the 1980s, duke had received in its own files, and the state had this, a Safety Report warning with them about this problem of having a corrugated metal pipe under a coal ash lagoon. In subsequent reports, there were constant references to make sure you check this pipe, check this pipe, be sure you watch whats coming out of this pipe. Well, instead, this old site which unfortunately was built right on the banks of the dan river, which is true of most all these facilities that are right on the banks of rivers, right upstream from a Drinking Water source, that pipe on super bowl sunday a year ago broke, corroded, finally gave way, and spewed coal ash and also 24 million gallons of coal ash polluted water into the dan river. Subsequently, duke has said its done all it can do, and its removed less than 10 of the ash from that river, thereby declaring defeat. In other words, once one of these spills occurs, they cannot even clean it up. Why were we in a position where this can happen . Because we were engaging in the foolhardy practice of storing this industrial waste in a riverside lagoon filled with water held back by earthen dikes that leaked with rotting infrastructure. Had that ash, as is happening in South Carolina today as we speak, had that ash instead been stored in a dry state, in a lined landfill like we require for simple municipal, away from the river, this would never have happened. In other words, these sites are engineered, or not engineered, to be as dangerous as possible. The shocking thing is the dan river site is the smallest coal ash site that duke has in the state of North Carolina. In that sense, in some odd way, we were fortunate. Thank you. Weve heard from other witnesses on your panel that states are best positioned to enforce coal ash disposal requirements. Do you think states have proven their ability to effectively enforce coal ash rules . Well, just take the dan river for example. The state never required a cleanup. In fact, believe it or not, six months before the spill in response to a notice the citizens sent, the state was forced to file a lawsuit. Six months beforehand, it stated in writing in a public filing under oath that duke was violating state and federal clean water laws at that site. And that if those things were not corrected, it was a serious threat to Public Health, safety, and welfare. And not one thing was done in the ensuing six months to get the ash moved out of that site. Thats one illustration. Mr. Schafer, do you agree with that assessment . [ inaudible ]. Turn the microphone on, please. Im sorry. Sorry. They felt like they werent getting a response from the state in response to their repeated complaints. We filed notice of intent on their behalf to bring a suit. The state turned around, decided the site presented an imminent and substantial endangerment, required its closure, and required we think a pretty aggressive cleanup. The state did credit citizens for getting that result. Thank you. Gentlemans time expired. Chair now recognizes mr. Harper from mississippi. Thank you, mr. Chairman. Im going to yield my time to the gentleman from West Virginia, mr. Mckinley. Thank you, mr. Harper. Appreciate that. Whole hosts of subject here with this panel that we have before us. And one of them, one of the issues that has been for us in the panhandle of West Virginia. Despite your comments, we had the havens here. Weve had people that have experienced that. We want to hear that. We want to make sure were sensitive to that. This panel, this committee has done that and maybe should continue to do that even more. But they were here to testify about what those situations were like. I thought it was very moving testimony. Your group, mr. Holleman, the Environmental Integrity project. Thats your, okay. You put out a report that calls in harms way coal ash. That was given to pennsylvania. Theyre the ones primarily responsible. They did a very exhaustive study because they want to respond. These allegations of people, these threats, they came back and said based on the review of the information in this report for this particular facility, dep of pennsylvania concludes that the allegations regarding ground water and surface water contamination are unfounded. So i want us to be careful that we can come here and testify to these. There are adequate responses, and there are recourses for it. And dep looked into it. I have pursued this because i think it is we need to be careful about that. Ive been in touch with pennsylvania about their how they monitored little blue, and West Virginia as well. We see theyve leveed fined. Theyve done what they said they were going to do. And that was to enforce the law and the requirements with it. So i think that it appears to me from their reports and their letters and their correspondence, theyre trying to be good stewards of the environment. And they are enforcing that. Im just curious. We passed legislation in the 112th, 113th that dealt with the existing and future impoundments. Line, unlined, addressing those issues. We included in that language because ive heard you say it several times here about the siding restrictions in that language. But didnt your group oppose the bill . Either one of you . We certainly did. And wed continue to do that. The siding restrictions in that legislation we dont think were comparable to the okay. The reason that i raise these issues to you if i could recover my time, please. If we dont pass legislation, we stay the way weve been since the 60s. That hasnt worked. Thats whats caused a lot of these issues. Were trying to find a way to get a resolution, and were trying to find a solution. Here was a bill. If we have to tweak it defeat it as they did over in the senate, that wasnt productive. We had a bill. Were going to do it again this year. I hope that people that have some concerns work with us because weve got to reach certainty. I heard all the testimony. Weve got to find a way to close the door so the people that are making the investment in their respective facilities know tomorrow theyll be able to continue to operate. Its very important we pass the legislation to close up these loopholes, close up some of the issues that have defined this and made it a negative. With that, i thank you for your testimony. I hope that you will continue to work with us, all of you, the entire panel, as we perfect this, if we need to go even further with it. With that, i yield back the balance of my time. Gentleman yields back the balance of his time. Without objection, i allow unanimous consent to allow mr. Schafer to respond. Mr. Mckinley gets another five minutes. Were going to let you interject here before he goes next again. I very much appreciate that, mr. Chairman. Ill be quick. It really is useful to compare what pennsylvania said in its complaint in 2012 about the condition of that site to what they told epa the condition of that site was during the rule making process. Its really kind of different. Youll see very different statements. Youll see the state saying the sites leaked. Youll see them saying the company has practiced substantial and imminent danger to the environment. You dont see any of that coming through in the testimony to epa. The enforcement action the state took and i just dont want this point to get lost, came after the citizens filed a notice of their intent to sue the company for those violations. Not before. It came after. Pennsylvania, if they would like to tell you they were going to do it anyway, id be happy to hear that. Thats great. But we didnt get that feeling. Fortunately, you got 17 seconds left. Well allow mr. Forbeck from the commonwealth of pennsylvania to respond. Yes, actually, im very familiar with this. Pennsylvania actually signed a Consent Decree going through the procedures to close this facility. We actually had been looking at that site long before this suit was filed. As anything, thats whats the beauty of the system that we have in place. We have ground Water Monitoring. We are air monitoring, all these factors that are in place that were constantly looking at a facility. Were constantly looking at the compliance of that. And therefore, its a moving target. At one point, maybe one thing. At another in the future, it may be another. But we have those monitoring points in place that they can tell that. So, yes, we actually had started enforcement procedures before that. Because of this and the issues we found, theyre actually closing the largest coal combustion impoundment in the United States in an environmentally safe manner. Thank you very much. Now, because of the magic of our rules, the chair recognizes the gentleman from West Virginia. Are you done . Okay. Thank you. Chair now recognizes the gentleman from north dakota, mr. Cramer, for five minutes. Thank you, mr. Chairman. Thank you, all of the panelists. I just want to i want to get to one very specific point. To me its obvious that the patchwork, the inconsistency potential, the uncertainty that would be created by selfimplementation and enforcement by courts, thats a problem. Thats a problem for me on lots of fronts. But i would like at least the two regulators to speak to the issue, if we were to tighten that up, put state primacy in place as it is in so many areas like this, and codify, you know, the codify the language in the epa and certainly the definition of nonhazardous, do your do the citizens of your states or any of our states lose their ability to appeal, to attend hearings, to complain . I mean, its sort of like were talking about either citizens have rights or the bureaucracy has rights and the two cant go hand in hand. As a former regulator myself, frankly, we heard more from citizens in these hearings than we heard from any other person. To me, the local and state level is where you get more citizen interaction, not less. So could you somebody elaborate on that for me. If theres time left, i would welcome you as well to comment. As far as our members, we feel were all in favor of min minimum federal standards. The certainty of it is the key point that was missing in all this. No, we do not think that citizens will lose their ability to have public forum or further appealing of decisions. No, we feel that will continue. And a thing that would help by having a federal law and certainly the epa rules will help, is that already a number of states, luckily not including my own, where it is not allowed to have a more stringent a regulation than the federal government. Having this federal rule and having a law that says you must do this, i think, will help a lot so that those states will have this program implemented at the state level, and youre right, at the state level we have people on the ground, in the field for the citizens to talk to. They certainly can come in our case to indianapolis. They have legislators out there. They do have a lot of input. So mr. Schafer, and mr. Holleman, same question. This is a concern to me, what you raise. I want to ensure what were doing would not in any way negate citizens access. Its a good question, but were really talking about two entirely different things. Citizens have the right under federal and state statutes to comment on, to be present at hearings, as you saw as a state commissioner, in determining whether a permit is put in place or what regulation is adopted. Thats true. Thats not what were talking about. Were talking about once your commission or in our state environmental commissions put in place a permit or regulation and then the utility violates it. After the public has had input, they just violate it. They dont comply. And then the state agency, for whatever reason, which we have seen repeatedly, refuses to enforce the very permits, laws, and regulations that have been produced through this public Comment Period. So it makes it pointless. You go comment, you go through this process, which is important, as you say, but then the very State Government that put this in place refuses to enforce what the citizens participated in creating. In fact, in our state, our Public Service commission, one of the commissioners expressed shock that duke had not yet moved its ash from one of the sites that was present there and was not complying with the permit and regs that our state Regulatory Agency put in place. So did this shocked commissioner have any opportunity to do something about it . In other words no, he did not. I assume state legislators are elected, a governor is elected. Im just seeing it these things, including enforcement, being closer to people, seems to me to be better for the people than removing it from the people. No, it is in the hands of the people. The people who had taken this enforcement action are local Community People going to their local state or local federal courthouse. These are people who live next door to you and me. These are people in the community. They have to be but i dont see this law or this principle violating that. As long as you all dont fool with or mess with the citizens right to sue, we still have that right to sue. And the citizens have the right to go forward and to see that the law is enforced. But if you were to affect that, you are taking rights away from the people and saying they belong only to a bureaucracy which may or may not act the gentlemans time is expired. I want to assure people theres no discussion neither in the last bill of alleviating or taking the citizens right to sue. So you can rest comfortably in that. Votes are being called. We still have one member who wants to ask questions. Ill be brief. Again, thanks for our panel and your patience since we have a different series of votes today. If i could just kind of go down the line real quick with a few of you. Theres been some good discussion here today as to the implementation, the uncertainty as to things that have to be done. How much input did you have with the epa when they were implementing the rule . They are not implementing yet. We had a number of discussions with them and what we would like to see and some of it is in, and some of it is not. What percentage would that be, just ball park . We like that it is subtitled. We are disappointed at the way it is being implemented. We share very similar feelings. We were involved heavily with correspondence and epa about the rule, and as was said, we appreciate the supplementation on the salt Waste Management plan that was our concern. It is not a certainty that we wanted to see. Just switching gears real quick here. The question that i would ask the administrator before he finished up his testimony today, on the certainty and the beneficial use, ms. Johnson with you and your testimony and the company that is really located near you, to make the board, do you think there is certainty out there right now . Do you think there could be changes in the future from the epa . I believe based on what epa has stated they clearly have the opportunity to revisit their determination on nonhardardous. That uncertain it is a problem. And a later designation or determination of hazardous is going to put that beneficial use of beneficial products. It is too early to tell if there has been a positive affect and theyre happy of people going with subtitle d. They may want to go back and visit the exemption. They said it again. It did not hazard Waste Management. But they may come back and say it again. We need an action by congress for that chain of events. How about you on the issue of the beneficiary use and the certainty. I personally dont think it is certain when you say youre going to reopen it. In history, the epa has changed the levels in Drinking Water that sends a test that is 100 times that standard, and it used to be nonhazardous into hazardous, and businesses have to aguess that risk and what could happen to them. What is indianas percentage of coal for electricity . Its going down, but i think it is still over 85 . I remember it used to be around 90 . In my area it was around 73 . With that, mr. Chairman in the interest of time, i yield back. Before i adjourn, i need to ask unanimous consent to accept a letter by the Prairie River and the attachments. Without objection, so ordered. Thank you for coming to this great hearing. We look forward to working with you as we move forward this hearing is adjourned. President obamas nominee for attorney general will head to washington for her nomination. She will testify before the Senate Judiciary committee and our coverage starts live at 10 00 a. M. Eastern here on cspan 3. We live coverage of the senate and house, here on c span 3 we show you the most relevant congressional hearings and Public Affairs events. On weekends its the home to American History tv with programs that tell our nations story including six unique stories. American art facts, touring museums museums. History bookshelf. Looking at the policies and legacies of our commanders in chief. Lectures in history. And our new series our government. Cspan 3 created by the cable tv industry and funded by your local cable or satellite provider. Like us on facebook and follow us on twitter. Paul premer is the former Iraq Coalition provisional authority administrator. He talks about the recent attacks in paris. The institute for policy studies hosted this study earlier this month. Thank you for joining us today. Weve got a very very special in my judgment operation for you today because ambassador paul bremer, who has really served our nation for over 40 years in many, many crucial diplomatic and other assignments and the like and has a wealth of really a treasure trove of knowledge, some of which i think hell share with us today because he has, as usual, a great group of commitments and the like. Were just reminiscing a little bit together. Just to tell you how old i am i first met the ambassador in 1976, when he was a boy state department gentleman in the embassy at norway and i was of course the commander of the Marine Forces that were involved in reinforcing north norway and the like. Our paths have crossed many many times since then. When he was ambassador in the netherlands and the like. And of course later on we crossed trails again, in 1979 when the federal bureau of investigation held their first real big meeting if you will, on global terrorism. And of course ambassador bremer was there, as were many others. The point i want to make here is that all through the years he was one person that we as a nation or we as members of the joint chiefs of staff, whatever the particular assignments we had through the years we could go to for good sound advice and thought process on terrorism and on a whole group of other subjects as well. So hes well educated, as we all know. Went to yale. I wont hold that against him. But then later advanced education in paris and of course like all people who try to be more important than they really are he went to harvard and got a little Business Training and the like. But at any rate were delighted that you could find the time to join us, ambassador bremer, and the floor is all yours. Thank you very much, al. Im reminded. I usually paraphrase president kennedy when it comes to that and say because i didnt study at all in new haven i say i had the advantage of a Harvard Education and a yale degree. Thats trouble. Im going to talk about that in a minute actually. I had originally when i had agreed to do this event with yoena, i thought i was going to talk about broad geopolitical problems, in particular the problems that we face in the United States and the challenge of continuing our leadership. I will get to that. But in light of this audience and my own experience now of almost 40 years of fighting terrorism and the events in paris, i thought id better start by talking about the events in paris and try to relate that to the broad erer situation. I have sort of three points. Contrary to what all the pund sxits socalled experts and the journalists have said, the events, the attacks on Charlie Hebdo do not represent a new form of terrorism. They are a tactical adaptation as part of a broad longstanding terrorist strategy. Thats the first point. And ill talk a little more about that. Secondly, this jihadist strategy is a danger to the United States states. It poses a significant danger to the United States. As it did after 9 11. And how we respond is going to be very important. Thats the third point. The way in which we respond, we in the west respond will have a lot to say about what kind of century the 21st century is going to be. Now, let me take first the point its not new. I have a vivid memory of a wednesday morning in paris at the ministry of interior in place beauvant. At the time the minister of interior was a very rough corsican named charles pasqua. And in f. Any of you have ever met corsicans you know when a coarse cannes is rough hes really rough. He was a terrific minister of interior. We had very close relations. I was at that time ambassador at large for counterterrorism. He had called me tuesday afternoon washington time to say i need you to come over, ambassador, tomorrow ive got news for you. So i flew over that night. And in his ornate elaborate louis xvi office at place beauva nechlt t he said theyd found a cache of explosives and weapons three weeks earlier, so being good policemen they staked it out to see who came for the stuff. And that day, tuesday, a group of hezbollah terrorists had come and started digging up the stuff. And what he told me that was interesting, he said that their objective, their state objective when they were captured was to establish the Islamic Republic of france. Now, in 1987 that was pretty shocking news. I can tell you, ive been fighting a lot of terrorists but id never heard anybody talking about the Islamic Republic of france. Spin the clock forward ten years, and i was appointed chairman of the bipartisan National Commission on terrorism. Ten five republicans, five democrats. Appointed by the house by the speaker of the house. We studied the question of terrorism and reported to president clinton, the American People and congress 15 years ago now. 15 years ago this june. And the United States faced a new form of terrorism, an extremist islamic jihadistoriented form of terrorism. And we predicted as it turned out unfortunately correctly that these terrorists would conduct mass casualty attacks on the american homeland. This was 15 months before 9 11. Why did we say that . We studied the record. Let me just read you a few of the comments that came to our attention. Ayatollah khameini said those who study jihad will understand why islam wants to conquer the whole world. Islam says kill all the unbelievers just as they would kill you. He said that, by the way, in 1942. The founder of the muslim brotherhood, said qutab, the ultimate objective of the Islamic Movement of jihad is to be carried throughout the earth to the whole of mankind. 1955. Nothing new about this. Abu bakr bashar whos an indonesian terrorist. So just to say its not just in the middle east. Said in 2005 islam and the west are at war and islam must win and the westerners will be destroyed. The head of al qaeda in iraq, abu musab zarqawi, while i was actually in iraq, said, now you see before you people who love death just as you love life. Killing for the sake of god is their highest wish. Now, let me just say, these do not represent the views of the majority of muslims. Im simply quoting muslim extremists. Im not saying thats the way all muslims im not even taking a position on whether or not that represents a valid interpretation of islam. Im not a muslim. So im not qualified to make im just telling you thats what they said and those are the precepts on which they have since then acted. People sometimes say what is the root cause of this hatred of the west . How can we deal with it . Well, its really quite simple. In their speeches, in their press conferences, in their fatwas and more recently on their websites and in their blogs these extreme ifrkts starting with Osama Bin Laden and all the others have made it clear that the thing they hate most of all about the west is the west. They hate us for who we are. Not for what we do. They hate us for who we are. How do i know that . Because they say we are against freedom of the press we are against free trade unions we are against womens education, we are against elections, we hate most of all democracy. Ayman zawahiri, the current head of al qaeda still alive and well somewhere has said, democracy is a new religion that must be destroyed by war. There is no question about what they think. Now, with people like this, with extremists like this, theres no compromise. Theres nothing that theyre asking for that we can give them because they want us the western civilization effectively to go away to be conquered, to be killed. Thats their agenda. Theyve said it over and over now for a period going back as long as 70 years. That is the view of islamic extremists that we are up against. This is a global war. These extremists, the warriors are sprinkled everywhere from the Eastern Shore of the mediterranean to the indus river, from the deserts of north africa all the way akroscross to the red sea down at thethe Arabian Peninsula across the waters to somalia, and they are rampaging at large apparently at will in africasest country today where boko haram has also declared itself a new caliphate. Now, the relationship of this to us with the attack last week on Charlie Hebdo. Freedom of the speech is a core value of western