expressed my view in good new york taste and they said, okay, that's fair enough, we'll come back to you. >> chris in texas, a republican. hi. >> good morning. morning. just want eded to say that you know, the people have spoken and we now control the house for a reason. because the policies that you guys have been putting forward are not working and the ones that you stalled in the senate, 300 something of you won't even read them. you just throw them in the trash can. that's why we're fixing to get a republican president as well. so that we can get our country back on line with the constitution, the bill of rights. that works. that always has. those old guys that founded this country had it figured out. they knew how evil and greedy people can be and that's why

they wrote that thing, to protect us from that sort of thing. >> okay, chris. >> chris, i guess one of the issues i would have with your assessment is we have cut the deficits by more than half of what they were when george bush was president. the dow was about 7,000. it exceeded 17,000. the economy was up as i said, over 12%. corporate profits up over 46% and so the suggestion that these policies were bad for america just frankly doesn't make sense to me. now, what does is that those policies stopped the collapse of our economy but now we've got to build a foundation for people who have been left behind. for those middle class workers who have been looking at their pay stubs saying i don't see those statistics. and that's why i believe and why democrats believe, the focus has to be the middle class. they deserve a break because my sense is particularly in any district, people say if you're really rich, the government is there for you and if you're

really poor, the government will help you but if you're in between, the government has done nothing. you've always within the backbone of our economy and so, the government and private sector needs to do more to focus on your economic vitality and vie brans. >> steve in alaska. independent caller. hi, steve. >> first time caller. i just got a question. for your guest there about tax accountability. it seems to me that we pay a lot of taxes in this country. a lot of taxes. income tax of óh!lñourse, everybody understands that's got to go into a fund to operate the country, but then we have airline taxes and cell phone taxes and talking now, they want to tax the internet. taxes on cigarette and tobacco and social security tax. everybody knows you know you guys throw all those taxes into a general fund and there's no real accountability and i don't why we would have a dedicated tax like a social security tax, but it's not all going into a social security tax or a gasoline tax where that tax is

going to its own account where it pays for infrastructure and highways like was intended. seems like there's no accountable for the money and you spend it hgw]vá6370i you want. >> i think you're right. we have a tax code that is not understandable to any mortal human being. we don't have enough accountability or transparency. we know we pay a tax. we don't know where that money is going. we need to radically reform our tax code, make it simpler. i would support reduced corporate tax. so long as we know where those investments investments, where those revenues are going and so long as we know that even with the reduced corporate tax code we're making those investments and people who haven't received those over the past several years, but we need a simple tax code, a fairer tax code. a tax code that doesn't -- for the rich and that provides for the middle class. >> kathy democratic caller. >> hello. yes, i swrus wanted to say that

i disagreed with the previous caller. i think the democrats have been doing a very good job. but i did want to ask steve what he thought about sanctions on iran. hopefully, he's going to give a chance for the talks to be completed. because i think that's very important, but i know congress may go ahead and may put forth sanctions. and i hope, i just want to know what your feeling is on that. because it's very important. i think we should give time, allow this time because it's very important the talk rather than going to war and i just wanted to know what you feel, steve, about this. >> thank you for the question. i don't believe that we're going to war and i don't believe that anybody is advocating going to war. item going to disappoint you on this question. i am very skeptical about negotiations and i believe sanctions and if iran fails to give us a deal that truly

contains, not only contains, but stops dead in its tracks, their nuclear research and development capacity, you need sanctions to ensure that the iranian regime gets to that point and i don't think they're going to get to that point. i'm to the left of center on social issues, economic issues. to the right of center on national security and foreign policy issues and i do not believe that iran is is a trustworthy partner. and if there's going to be a deal, again, i'll take a look at it, but boy, it4tb'ñ better be transparent and result in the elimination of every aspect of iran's nuclear program because the world cannot afford a nuclear capable or equipped iran and certainly, iran's neighbors in the middle east can't afford that. you will see the proliferation of nuclear weapons programs all throughout the middle east, which makes that neighborhood even more dangerous than it is today. >> the cnn is reporting that lawmakers plan to go ahead and push for these iran sanctions.

in "the washington post" this morning, there's a piece written by francis minister of foreign affairs, britain's foreign secretary, germany's federal minister for foreign affairs and the representative of the european union. all of them saying give diplomacy a chance. writing that the agreement so far has had three main benefits. fist it has stopped the progress of the most sensitive elements of iran's nuclear program. at the same time the international community has gained improved access to iran's nuclear facilities allowing the world to verify whether iran is living up to its commitment and it has given us time and space to try to gauchenegotiate a long-term settlement, which is crucial for the future of international and regional security. >> those are some pretty fancy titles and ministers but they don't have seats in the united states congress, so my responsibility is to do what i believe is best for my constituents and my country and i do not believe that a deal

that is bad for the sake of getting a deal deal done is in the best interest of those folks and certainly not the best interest of the united states. i'm not saying we should pull the plug on negotiations. i do believe my own experience is that if you're negotiating with a tough partner and they believe that you yourself will provide relief well, that's not negotiating strategy. that's a concession strategy, so we keep the pressure on iran in the hopes we will get to a deal everybody can support. >> if this proposal came tohy floor in the house, iran sanctions further iran sanction sanctions, how many democrats do you think would support it? >> impossible to say. i don't believe there's a critical mass right now to oppose the sanctions deal. i believe the sanctions bill if it came to the floor now would pass the congress. mostly with republican votes. >> do you agree with the speaker's decision to invite

benjamin netanyahu to speak for the congress? >> he's the speaker of the house. one of the things he gets to do is invite anybody he wants to speak. we have had ups and downs in our relationship with islamabad. with israel through every single precedence. since 1948. so, this is nothing new. and i'm anxious to see the prime minister and to hear where we go from here in the peace process. >> steven ft. lauderdale, florida, an independent. you're on the air. >> good morning. i am the middle class and i do agree with president obama on the 50 yearskñ of doing something and you know, definition of insanity. so, let's get rid of welfare. we've been doing that for 50 years, too. okay. i agree with the president on community college. let's integrate 13th and 14th grade into our public school systems. you can opt out at 16, you can drop out, so, let's put that sh 13th and 14th grade as an

option. >> we'll have the congressman weigh in on your thoughts. >> what do you think? i don't think it's 13th or 14th grade. i think it's what do you do if you've been making a certain product your whole life you've been on the floor making this product and suddenly a new technology from japan has come out that makes that product obsolete. that's where we need to realign community colleges. we know for a fact that the new jobs in this country are going to be in additive manufacturing. 3-2 3-2rks printing. cyber defense. that's where the career growth is going to be over the long-term and that's where our community colleged need to be. your comment about let's get rid of welfare a lot of my colleagues on the republican side say let's get rid of welfare, but kobt to vote for it for the biggest corporations. for example, what form of welfare is more insedidious than paying to ship jobs overseas. i'll take a look at every single

program. we ought to put everything on the table and review it and make decisions on whether it's still pertinent and truly helps people in the economy. but that has to include all the corporate benefits that every single tax bill passed by republicans bestows on their well connected friends. >> richard ohio, democrat. >> yeah, i agree with the congressman there, exactly. one thing is happening, too, is that the big business unlike henry ford who was a republican who believed in the middle class, believed in giving people a living wage, believed in someone having a new car and home and sending your kid to college. this is not believed by the republican party today and their purpose today is to get people to make as little as possible so you can't survive to keep everybody on the government. we can't afford that because they've eliminated all of the companies and the businesses paying the social security, so, that's our problem.

>> i think with one exception or serl. several. one of my favorite republican presidents was eisenhower. you know why? because he understood if you were going to grow a middle class, you would to grow an infrastructure and make college more affordable. and so, it was eisenhower who supported and developed many of the student affordability programs, student loan programs that we have today. richard nixon understood that we had to make certain investmentsá7kñ in environmental toenlgechnologies and protection. he understood that's how you grow middle class, so we need republicans like eisenhower and president obama and bill clinton who understand you have to meet in the middle and the middle is the middle class. >> i want to get your reaction to this front page story in "usa today" that the u.s. is set to clear the officer in ferguson. it says that the shooting investigation was largely completed weeks ago. who were not authorized to speak

publicly. this according to official. this case is now in the hands of federal prosecutors and a final decision is is expected by eric holder in the next several weeks. just wonder your thoughts on what this means about race in our country and civil rights. >> one of the most telling -- >> 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 appearing and again, as i said, my opening remarks, i appreciate the working relationship we've had with it. just a couple maybe four quick questions, three or four quick questions, two of which might be just yes or no. but the first one is do you personally think coal ash is a hazardous material? >> well we've i'ved the various risks associated and we've put in place technical requirements

to be protected against those risks and identified the various -- we should establish liner and ground water program to be protected. >> which is a terrible. concrete,oú1jñ dry wall. with the legislation we passed over the last two congresses, would that have created certainty within the recyclers and the utility industry? you don't think it would? >> what i can say is is we expected a rule. we think it provides the kind of certainty. >> not taking about the rule. the bill that we had. all about certainty.

i come from the business world. we need to have certainty. unfortunately, i believe it was a reasonable effort, but it doesn't create certainty so my last question might be that this proposed rule that provides us no assurance that coal ash will not be regulated as a hazardous waste in the future. so could you explain the agency's justification for leaving that door open and almost 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 actually think that we provide tremendous certainty in the final rule. for example, i think it remains clear that issues is not subject

to the rule that the existing protections continue to remain and we think that coupled with other actions we've taken will foster not only the stabilization, but increased use of beneficial use. >> how do you deal with the -- on page 18. this rule defers, postponed, final determination until information is available. that's like the door is wide opened. sometimes sometimes, someone is going to make a determination that could be based on other information, so i don't agree with you that there's certainty at all with this legislation. i think it was well intended. it helped us resolve the differences between c and d, but

it still doesn't give us a view of tomorrow. i've got to find out how do we shut the door? >> i actually, in my opinion, i don't think we left the door wide open. i think we're 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 you're referring so, then goes on to say that we didn't have full and complete information antdd a couple of one big area was how states would move forward with their program. we believe that the combination of a clear, consistent federal set of criteria coupled with a planning program may be an approval of that, will provide comfort and certainty with respect to those issues. we don't think that the door is open. >> i guess like you said earlier, we're just going to have to agree to disagree on

that because i think it's clear from business when you have that language that something can happen in the future the next administration can come at it with a different attitude towards it than you have had, it makes it uncertain. so we need to just close that. so so, let's continue working together on that and see if we can't close that, close the door on it. yield back the balance. >> i'll reaffirm my commitment to continue to work with you. we also make clear we would would not do anything. we think we've done a good job and provide the protection, but any future changes like -- it will have to require another proposal, another notice in congress. >> mr. doyle for five minutes. >> thank you mr. chairman.

i want to thank you for convening this hearing on this final rule. of concerns that it might limit beneficial reuse on the one hand or fail to protect the public health on the other but i'm generally pleased with this rule. epa has protected beneficial reuse and put in criteria that will ensure safe disposal. i'd like to ask you just a few questions. the final rule prevents the beneficial reuse of coal in any way. >> no beneficial use is protected. >> in fact, coal ash that's reused won't be subject to the disposal requirements in the rule. >> that is correct. >> and in fact, according to the final rule, 52 million tons of coal ash are beneficially reused annually. can you tell us about some of the environmental benefits of

recircling coal ash instead of sending it to a landfill? >> sure, saved energy costs, reducing greenhouse gases and reducing impacts to the environment as well as tremendous economic benefits of replacing material with coal ash. >> thank you. i want to move on to what we've been hearing a lot of discussion about. you're going to hear a lot about this self-implementing requirement for this rule and i wanted to give you the on the concern that we're creating a dual regulatory regime. potentially requiring owners and op operators to adhere to a two set of standards. what does it mean when so the epa will approve these plans and you say that they'll be approved as long as they demonstrate federal compliance. what does that mean? what, can you, what does that terminology mean? >> what states would have to do

is to integrate the federal criteria into the state program. >> so you're saying any state plan the epa would approve would have within its plan, the federal requirements so there's no way any state would be out of of compliance if you've approved their plan because that will be at the minimum, what their plan has to adopt and they can do something over and above that? >> that's right. from a utility compliance perspective, once that approval happens, the states will have to comeply with a single set of information, have comfort that epa's approved. if the utility follows a state program, epa will deem that compliance with the federal criteria. >> so, what you're saying in effect if a state adopts that plan and the utility implements it, that there's no way they can be out of compliance with the federal statute. they could be out of statue with

the state one if it has extra with it. but you feel it addresses that corn about the dual regulation. >> we do. >> that's all the questions i have, mr. chairman, thanks. >> the chair now recognizes it looks like the gentleman from north dakota, mr. cramer, for five minutes. >> thank you mr. chairman and thank you for being here and for your good work on the rule. i just have one area, i'm going to continue on this line of exploring on the self-implementing piece because i spent a number of years on the north dakota public service commission, carried the coal portfolio and the one thing that i heard a lot, especially in whatever the case might have been, but when ever we were challenged in court we were plen plenty of times and we prevailed as a commission, not because our lawyers were superior or anything like that, we have good lawyers.

but because the courts in highly technical matters just always defer to the experts. to the administrative agency, so this self-implementing thing just makes me a little nervous and if it makes me a little nervous as a former regulator i can only imagine how nervous it makes the industry. and it just seems to me that we could tighten it up.ip%#@ and provide the certainty. really really, the protections that we're trying to accomplish and i think should be to the to the benefit on both sides. is there a better reason? >> i don't disagree with the old world views of that will provide a substantial -- a reason why we're tieing these minimum

federal requirements to an epa rule of the state program because we believe strongly that the courts will look at that and provide substantial weight to that technical judgment of the combination of the states and epa. >> i understand that. can't we just go the next step and tie it down so that we're not relying on self-implementation and then the discretion of multiple jurisdictions and courts when we have the experts in what seems to be pretty relative agreement for this place. and just tie it down, i think you get a lot of support. >> recognizes chairman from north carolina for five mibs. >> thank you, mr. chairman. thanks for holding the hearing.

how many ton of coal ash are produced in this country a year? >> i don't have. >> any idea about what fraction of that is used in beneficial waste for construction or road grade material or so on? >> not off the top. i believe about 30%, but i can get back to you on the actual numbers. >> is is there more opportunity for beneficial use? >> absolutely. >> how would that happen? what would it take for more sben official uses to come agent? >> i think probably tom adams would be a better witness to ask that, but clearly when we've discussed with the reuse manufacturers and providing the certainty that we provided will be a first step in to expanding the beneficial use of coal ash. >> that's a part of the rule. >> that's right. >> okay. i'm a little concerned about

citizen lawsuits. how quickly do you think that we will see, we'll start to see improvements in the safety of coal ash, disposal sites as a result of the rule? >> i think we will begin immediately. the rule takes effect in basically six months from publication. which should be in about a month or so, so there's an early obligations like making sure you have a dust control plan in place, make sure you begin the inspections. i think you will see some early improvement, a lot of these are things that were done by some of the leading utilities any way, so i think that's going to be a standardization among the country and as time progresses roughly in about 18 months, some of the more structural issues would be addressed, those things that potentially contaminated ground water, potentially have an impact on structural stability would be addressed. >> do you expect a robust transparency provisions instead

of compliance? >> absolutely. the studyies show that the more disclosure, data and compliance and a deep and granular way it's an incentive for compliance and also enables citizens adjacent to these facilities and the states to monitor compliance. >> do you think that the citizens in the states are going to buy the disclosures that the disposal agencies are going to be putting out on their websites? do you think people are going to buy it or revert to lawsuits to satisfy their concerns? >> well, i think that one of the reasons we put in this public disclosure, to respond to citizens request of having detailed information. for example, ground water data and how it compares is it exceeding protective standards, so i think it's going to add substantial value to compliance and oversight by citizens.

>> so, there's enough teeth in your opinion in the compliance requirements that people will take satisfaction they're doing what they're saying. >> we do. we do. >> the last question, is there concern that the committee pass the bill signed into law, it would stif the beneficial use of coal ash or the safe disposal of coal ash? you think passing a law would stifle what's going to take place as a result of the rule? >> well, you know, i really cannot really answer that question today. what i can say is that you know, we strongly believe the rule provides a protection as well as a certainty, protection of the communities next to it so you know, i really can't provide an opinion as to what the effect of

any legislation would be regarding at this moment. >> i yield wakback. >> before i yield to mr. flores, i want to ask consent that a letter written today by the u.s. green building council be submitted for the record. is is there objection r, hearing none, so ordered. now, i'd like to recognize congressman flores from texas for five minutes. >> thank you, mr. chairman and thank you for joining us today.r i want to give you a quote and answer to the question about having multiple opinions of judges determine how the enforcement is carried out. you said we don't anticipate any issues with that, in that regard. i will tell you from a real world perspective anytime that you don't 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. and not only could you have it among the states you could have it within a state because you've got multiple district judges

that will make their own technical opinions, so i urge you to keep that under consideration as you move forward. this gets into the law if you will, and that is in terms of legacy sites, walk us through how the epa believes that it has a authority to regulate legacy sites and in particular, the specific reference to ricra, if that's what you're relying upon to make the rules. >> so clearly, we set forth in the rule that inactive sites at a active power plant, an active units in a power plant have the same risk. this has coal ash, all of its constituents are coal ash. it has water and under those conditions oppose to the identical risk of structural failure, leeching into ground water. so we believe that because of those circumstances, that ricra

provides us the ability and authority and a mandate that kind of protection because identical units, but for is not actively being used for disposal of coal ash. >> okay. let's take that to the next step. when you're talking about those particular empowerments, when you propose the application of location restrictions to existing surface impowerments, the epa acknowledged these limitations on location restrictions would force a majority of these, the current impowments to close. do you have annest atmat of how many will close and moving further upstream from those, what sort of liability, reliability issues could be imposed on our grid? is. >> well i don't have that, i can get you that information. i can get you that information. but just to be clear, the final rule provides location

requirements, but does not begin with closure. it begins with examining the criteria, then you still have to determine whether they are not in compliance with that. then they will have to determine can they put in engineering solutions to provide those kinds of protections. it will not automatically trigger closure. >> i can get you that data. >> ill think that would be important because in your rule, you acknowledge it will cause the majority of these to close and i think that creates an issue in terms of reliability. >> i'll check that and get back to you. >> and then to the extent that an operator grants itself an extension, what do you think the im impact will be in terms of citizen lawsuits and the instability, the, let's just say the instability or lack of clarity that causes an operator.

>> well because we've gone out, visited numerous coal ash impowerments around the country, we've reviewed information from utilities about different dimensions, some are going to be more challenging. provide enable themselves. the rule itself providing the extent further circumstances justifies that. that will be coupled with obvious the utility disclosing the circumstances, but we believe once you follow that they will not be a violation of the rule. >> thank you, i yield back.

>> chair now recognizes from ohio a lot who was very involved in pushing this legislation during the last couple of congresses. >> thank you very much, mr. chairman. mr. administrator, thanks very much for being with us today. if i could just go back, there's been a lot of discussion on beneficial use of coal ash and we've had different panels in here over the last couple of years talking about it, but one of the things i know you had mentioned earlier, in your testament testament, was beneficially used. but again in the testimony, we've had states saying boy, if the epa would change its mine we're going to require buildings to have maybe ripped out, so you've got school districts saying we don't want to use material that might in the future have some kind of epa coming back and saying it could be hazardous. we use the term certainty that

you've mentioned, what is the certainty that epa can give the folks out there that there's not going to be a change? again, if there's material, that material that is actually being used inside of a building that a lot of folks are worried about. school districts are worried about. so, how do you define certainty and how do we make sure the folks out there have that certainty of mind that the epa's not going to change in a coupleb0rj of years ha what they're defining as a hazardous or nonhazardous material. >> thank you. so, even before the finalization of the rule, because of this issue of certainty and rest and comments we received from the beneficial use industry, we first began by twoping a methodology to evaluate the continued use of beneficial use. we use that methodology and applied it and confirmed that

concrete -- continued to provide, we believe that provided a specific certainty. i know tom adams can speak for himself later on the panel. secondly, we also heard that this cloud some advocates have noted the cloud of uncertainty of not final izeizing the rule. continues to create uncertainty and we believe our decision to go with a proposal as opposed to the c proposal provides a second set of certainty. we believe we provide a substantial certainty to the market. >> you know, when you talk about the methodology, how do you go about that? who's at the epa sitting down to go forward with that standard or

what that should be set at? is is. >> this is to be used by users by manufactures, by states, to confirm that a product that used coal ash are compable, so it's safe to use to replace products. we think that the methodology has been well received in the marketplace. and on application to uses like concrete has been well received. >> thank you. mr. chairman, in the interest of the second panel, i'll yeed back. >> chair now recognizes the other gentleman from ohio. mr. johnson for five minutes. >> thank you, mr. chairman.

i want to get a clarification on something you said earlier. so, the state program does not operate in lieu of the federal program. is that correct? >> correct. zwl so, if the state program does not operate in lieu of the federal rule, then both set ises of requirements are still enforceable, correct? >> well, that is you heard those comments during our public comment process about the possibility precisely that. that is why we believe there's a vehicle to integrate the federal requirements into a state program and have epa prove the program to have that alignment occur. >> okay. >> so, for corrective action the final rule requires that if

a concern is detected above a significant level, that the ground water protection standard must be set at either the maximum containment level or at the background concentration. where as the proposed rule like the municipal solid waste program would have allowed the owner, operator, to establish an alternative ground ator protection standard based on site specific conditions. so, how doeswçw the epa anticipate that this will impact ongoing corrective action and coal ash disposal units in states that utilize risk based decision making? >> well we believe the risk based decision making that is is core to a clean up determination will continue. now, what we've done in the world is we've brought the various factors that's used in programs to do exactly what you noted. so consider the size specific factors. we begin with protecting ground

water, but then when you go and look at the specific clean up remedy that fits a particular situation, you evaluate the various technical factor and determine the clean up most appropriate to achieve the clean up. >> so, that ability to establish an alternative ground water protection standard based on site specific conditions, that would still be there in your view? >> so, what a utility would do is then look at the various factions, no different than establish the clean up option that best fits. i'll just leave it at that. >> going down to closure. if the owner or operator puts forth a plan and indicates the facileity needs more than the required amount of time to close in a safe manner, technically, the plan doesn't meet the led ded line.

is the owner or operator out of compliance with the final rule in that case and at what point is the owner, operator, sukt to lawsuit? when it puts out the plan with the longer closure date. or when it actually doesn't meet the five-year deadline. so, you've got an owner, operator that says it's going to take me longer than the rule allows. to do it. properly. what happens? >> yeah that was we received numerous comments precisely on that topic. we believe the five years is adequate for many of the units but there are going to be some units, because of the size because of the particular gentlemen ol jiis going to require more time. if they demonstrate those conditions exist and articulate

various timelines set forth in the rule. >> okay. mr. chairman, i yield back as well. >> mr. carter from california. >> thank you so much for having this hearing. i'd just like to ask you do you have a technical background? >> i'm an engineer and they don't cancel out. >> i appreciate that because i think when we're talking about epa and regulations, especially when it comes to things like coal ash, i think there is some science that goes into those decisions, correct? and evaluation and understandings and even beyond science ádi probableties and cause and

effect. i'm glad to know that you're, you've got that engineering background. i won't speak of your law degree, i'm not a lawyer, but i'm an engineer, so i appreciate that. now, when it comes to epa's new rule which would set national cry tier area for the design and locations of the ponds in protecting the communities that live with this potential risk, first of all. i'd like to applaud the epa for moving forward but also, this effort is important especially because hasueiñ it been determined or evaluated as to who is affected? >> yeah i'm not sure we've done a specific demographic analysis. clearly, the communities add vase enter to these facilities that are getting impacted by catastrophic failure by contaminated drinking water.

>> i think that in the los angeles basin if you 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 other side of town, which might be already affluent doesn't have hardly near any of this kind of activity, but at the same time maybe none of that activity, for zoning purposes and permits and things of that nature. so i'm just reflecting on what goes on in the l.a. basin and even with coal ashd specifically, not just coal ash, but other elements as well. one of my questions is to you is can you describe some of the ways this rule will make coal ash ponds safer for vulnerable communities surrounding them? >> sure. it begins with trying to prevent a catastrophic failure and as we know, the tva incident occurred essentially destroyed a community, caused about $1.3 billion, so contains a rigorous

set of requirements to prevent these things. regular inspections, structural evaluation engineering evaluation and based on that evaluation empowerments to have to enhance the structural stability, they would have to close that facility. with respect to preventing ground water, it begins with a comprehensive program of ground water monitoring. it exceeds protective standards immediately moving forward on cleaning up the ground water. where it exceed eded to protection standards, it would have to close. the other big issue is dust. we've heard from my communities about coal ash dust. so we've put in place a program to control a coal ash dust migrating into communities.

>> when you make this rule to many people in my opinion keep thinking that anytime you have regulation, they're just trying to hurt business..úpr#a9èá$árá happen to create the public safety requirements should we have standards in the united states of america. >> sure i did begin with listening and evaluating the comments we receive from everyone. clearly, the community's impacted, but clearly, we have to have an implementable rule, so we look add @ pragmatic issues of how can it be implemented in a realistic way that considers the circumstances, so we think it's a6ric rule on construction issues. >> so, you're not just going into this blindly without

understanding and appreciating what's going on in the real world for a day-to-day industry. >> it's pret it much data driven. >> okay. so commerce is something that's taken into account the flow and effects of commerce when these decisions and processes are discussed? >> oh, sure. we want to make sure that again, the challenge of of closure and avoid ing avoiding the billion dollar consequence of these failures, all of that goes into consideration. >> are there more examples outside of the united states more than in the united states so far as your data and research shows? >>llqñ yeah i was basing purely on the u.s. information, so i don't know the answer to that question. >> well, what i would like to recommend, i know that, i don't think it's beyond your p per view to at least understand what's going on in the rest of the world, especially because the world is getting smaller

with all this international commerce. i think it's important for us to understand as americans how having regulations here that don't happen in other parts of the world, how people are affected when they don't have that. i think as americans, we're kind of spoiled and i'd like to correct myself, mr. chair. we don't have coach coal ash in the l.a. basin or in california, but i was thinking about the piles of petroleum coke that we have in the l.a. basin, so i apologize i want to kreblgt myself. >> it's great to have you on the subcommittee. we can provide you some coal ash in the l.a. basin on some rail cars, how about that? so, we want to thank you for copping. again, great work. we'll listen to the second panel. i would expect we would try to maybe look at some of these tweets you've heard about today. and with that we'll dismiss you

and panel the second panel. so, thank you very much for coming. as our second spanl is being seated just for the sake of time, i've done this numerous times. i always miss up so i think i'll just do the introduction of each person before they have the five-minute opening statement. our panelists know their full statement is is submitted for the record. and just based on time and we

don't know when the votes are, we won't be meeting about the five minutes, but we'd like for you to adhere to that as best as possible. so, with that, i'm going to turn to the second panel and first, mr. thomas easterly, the commissioner of indiana department of environmental management. we're very happy to have you here and you're recognized for five minutes. >> thank you, chairman. and ranking member and members of the subcommittee. good morning. my name is thomas easterly and i am the commissioner of department of environmental management. and i bring you greetings from the governor of indiana, also. we appreciate the opportunity to share indiana's views on the western residuals rule, which we call ccr on occasion. i'm also representing ecos whose members are the leaders of

state and territorial environmental protection agency agencies. it has worked on the ccs for many years and our regulations was first passed in 2008 epa's final rule responds to some of the concerns outlined in the resolution, other long-time state concerns remain unaddressed. as an initial point, i express agreement with epa's finding that coal ash is not a hazardous race and it can be$)oñ beneficially reused. as a long-time regulator, i've observed first hand the tragic adverse environmental and human health impacts of ccr service and family failures. these structural engineering failures devastate people's lives, destroy property and contaminate natural resources. the epa's self-implementing rule contains robust natural structural integrity provisions

which would result in a meaningful reduction in crr 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 tot8#2bi3=b close. so they will be solving the problem. most important, epa's final rule explicitly recognizes the role state regulartory agents have and should continue to have. however, by implementing the rule, the role of oversight will be significantly marginalized. the key state role in this program will be maintained by states amending their solid waste management plans to incorporate the new federal requirements. epa expects once approved by epa, the amended plans will

receive deference by the courts and citizens. while the requirements of the rule are self-implementing for the regulated units the rule schedules would require states to achieve final solid waste management plan amendment with epa approval on a schedule which cannot be met by many states, including indiana. in order to ensure transparency indiana's laws require my agency to have four public notices with associated comment periods for new regulatory action. this public process normally takes at least 18 months. yet, some of the self-implementing deadlines in this regulation are as short as six months making it impossible for indiana to have regulations in place to implement those portions of the rule. yet, after the state plan is amended and approved by epa, the new ccr rules will remain independently enforceable through federal district courts. epa does not have the legal authority under subtitle d to deg gait the new rules to the

states. i would now like to address the need for a legislative amendment 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.b-xxñ first, legislation could codify epa's determination that coal ash is nonhazardous and get the going back and forth concern done forever. second, state programs simply cannot operate in place of the federal program without legislation. third, legislation can add certainty to the process of epa approving state solid waste management plans by making clear the criteria epa would apply to determine whether a state program meets the federal ccr

standards. fourth legislation could enhance and clarify enforcement of ccr requirements. mr. chairman, mr. ranking member, and members of the subcommittee, i thank you for the opportunity to present my views and those of ecos to you today, and i'm happy to answer any questions. >> thank you very much. i fail to do t and we'll do it but i'll also mention you're representing the environmental counsel of the states. now i'll recognize for five minutes, mr. michael forbeck, environmental program manager from the pennsylvania department of environmental protection bureau of waste management. you're recognized for five minutes. >> good morning, chairman and ranking member and members of the subcommittee. my name is michael forbeck, and i'm president of the state territorial and waste management i'm here on behalf of them to

testify. our association representing the waste management and remediation program of 50 states five territories, and the district of columbia. our membership includes state program experts with individual responsibility for the regulation and management of solid and hazardous waste. thank you for the opportunity to provide testimony on the epa final rule disposal of coal combustion residuals from electric utilities. we were very pleased to see and are in full agreement with epa's final agreement under subtitle d of the resource conservation recovery act. the focus of my testimony is on the issue of dual state and federal regulatory authority, we see as the result of the self-implementing construct. we're not offering testimony on specific technical requirements in the rule, as groups looking at these as well as beneficial use components and we'll have additional input on the specific provisions at a later time. epa has issued the rule under

subtitle d part 257, which is self-implementing. the part for 258, however, governing municipal salt waste, requires states to develop a program. regarding the 2010 proposed role, we pointed out that self-immaterial plemting standards would set up a regime for owners and operators that would be problematic for the effective implementation of the requirements of the ccr facilities. we recommended the final rule under part 257 include 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 epa hearing our concerns about dual state and federal regulatory authority and

their efforts working within the bounds of their statutory authority to provide a mechanism through the state's solid waste management plans to address our concerns. however, we see difficulties with the state plan mechanism. one is timing. in order for tats to adopt these standards by amending their salt waste management plans thereby avoiding dual regulatory authority in theory the process would have to be completed 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 aapproved 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 court's decision. 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 understanding. state programs would have the additional benefit of allowing flexibility for states to have regionally appropriate state standards. in conclusion we appreciate epa's decision to regulate ccrs under subtitle d and providing a mechanism within the confines of part 257 for implementation of the rule by the states. however, the revision of the salt waste management plan does not fully eliminate dual implementation of ccr regulatory programs. we look forward to working closely with congress regarding the ccr implementation rule. thank you for the opportunity to provide this testimony. i'll be here for questions. >> thank you very much. next we'd like to recognize ms.

lisa johnson. >> thank you mr. chairman, and good afternoon. my name is lisa johnson, and i am the ceo and general manager at seminole electric cooperative in tampa florida. it's one of the larnlest, not for profit cooperatives in the country. seminole is owned by nine not for profit consumer ztçoperatives. we provide safe, ree liable competitively priced electricity to more than 1 million consumers and businesses in parts of 42 florida counties. on behalf of seminole and the national rural electric cooperative association, i would like to thank you for your time this morning as i present our testimony on this important issue. seminole would like to acknowledge that we support the environmental protection agency's decision to designate coal combustion residuals as nonhazardous. the epa's approach supported by data from its own investigations

balances the need to protect public health and the environment without creating an undue burden on affected facilities. even with a nonhazardous final rule, we are seeking your support to provide additional legislative certainty. seminole owns and operates seminole generating station, or sgs, employing nearly 300 hard-working, 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 two-thirds 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 specifically constructed to use the gypsum. since 2000 more than 7 mmillion tons of this ccr material has been converted into wallboard. seminole also recycles all of the facility's bottom ash to manufacture cement and stronger, wider concrete block. if not used beneficially these by-products 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 seminole's most important goals is to operate our power plants in a safe environmentally responsible manner and in full compliance with all permits issued by the florida department of environmental protection and the epa. bringing us to one of our

concerns with the new rule. while epa will now regulate ccrs as nonhazardous the rule is self-implementing, which means facilities covered by the rule must comply with the federal rule regardless of adoption by the state. for example, should florida adopt the epa's final rule, the federal rule also remains in place, creating dueling regulatory regimes. as a self-implementing final rule, the typical method for a state or citizen group toywç1 check compliance at a facility that may or may not be adhereing to the rule is to file suit against the facility. this could result incàn 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 epa's new final rule.

the next major concern we have with the rule is the complete lack of certainty that ccrs will continue to be regulated as nonhazardous. for seminole, this is extremely problematic, as a major component of sgs design is based on our environmental control systems and our recycling practices. should epa decide to regulate ccrs as hazardous at a later time seminole would be forced to dispose of ccrs, turning a beneficially used product into an expensive 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 epa's determination. we ask that you end the continuous re-evaluation 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 i'd like to turn to mr. thomas adams executive director of american coal ash association. you're recognized for five minutes, sir. >> mr. chairman my name is thomas adams. i am the executive director of the american coal ash association. i'd like to thank you for the opportunity to come and speak to you and the subcommittee today about one of america's greatest recycling success stories and how that continued success depends on regulatory certainty. the acaa was established almost 50 years ago to advance the beneficial use of coal combustion products in ways that were environmentally responsible, technically sound commercially competitive, and supportive of a sustainable, global community. we're not a large-trade association. we're not based in washington, d.c. we're headquartered in farmington hills, michigan, and have a staff of two full-time

employees. we rely on volunteer members to accomplish our work, which is mostly technical. i'd like to emphasize that while we have some of the larnlest 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. it's 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. gee geological survey. despite a drum beat of publicity by anti-coal 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 it's hazardous waste was not warranted. over the next eight years coal ash beneficial use skyrocketed to 60.6 million tons in almost a 100% increasepkqw 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 2008's utilization, we would have seen 26.4 million tons less coal ash

put into landfills. the acaa appreciates epa's final decft)_qt t 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. we're 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 agency's 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 six-year 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. we'd like to thank you, mr. chairman, for this committee's diligence in addressing this issue. we believe it's 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 epa's decision to regulate coal ash as a

nonhazardous waste a decision which is consistent with the rule making record and with epa's previous regulatory determinations that coal ash does not warrant regulation as a hazardous waste. our long-standing 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 epa's regulation of coal ash as a nonhazardous waste there are serious flaws in the new rule due to statutory limb takesation takesationstakesation -- limitation limitations. the only exception are the provisions under which epa issued municipal solid waste landfill rules, which rememberare

enforceable through state programs. we're left with a rule that cannot be delegated to states and in which epa has no enforcement role. because the rule cannot be delegated to the states it's self-implementing and relegated facilities must comply with the requirement. 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 --séxç 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, we're hearing some states might not even attempt to adopt the new rule, which will guarantee dual regulation. in addition, the rule's 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 case-by-case 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 self-implementing, epa dropped risk-based options in the ground water monitoring program and for conducting cleanups. as a result the federal rule ektively overrides existing state risk-based regulatory programs for coal ash that have been proven protective of human health and the environment. some of our members are in the middle of implementing a

long-term site-specific closures or cleanups for coal ash facilities. we're concerned the federal rule's lack of recognition of state risk-based closure may negate these efforts. impoundments no longer receiving coal ash but which contain water and have not closed. we fully appreciate an akctive site may pose risks however, we do not believe the epa has the authority to subject past disposal practices to regulations 6óp/qár for active units as the agency has done in this rule. if epa wants additional authority, we believefñr÷ 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 ashmzwtç warrants hazardous waste regulation. while epa has for now settled on the nonhazardous waste option, the agency leaves the door open to revising the rules and regulating coal ash as a hazardous waste. this raises serious concerns. companies across the country will be investing huge resources to come into compliance with the new rule, even as epa con contemplatesofqfu establishing a whole new program that could negate these capital expenditures. this rule does notn provide that. i'd like to thank you for the opportunity to present these views and would be happy to answer any questions. >> thank you very much. chair now recognizes mr. eric schafer, director of environmental integrity projects. you're recognized for five minutes. i think you should hit a button on your mic. >> thank you for the opportunity to testify. i am eric schafer.

we've worked with citizens who live and work around coal ash sites and as certainty seems to be the theme for the hearing i'd like to speak to what certainty might mean to those good people. some of whom have been living with this problem for a very lo&x1q time. first, i really don't 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 don't want it in their lungs. and they would rather not have 39 million tonsc#mdñ 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 aren't going to happen again. i'll return to that, but obviously they did happen. so really the question is whether epa's rule or anything congress does gives people most affected by coal ash pollution the kind of certainty they're looking for. i just want to point out that

this issue has been bumped arnold 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. that's 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 don't like others. not too unusual for an epa outcome. the structural stability requirements could be helpful and could prevent the kind of catastrophic spills we've seen.

i do have to say it has some big loopholes. there's no cleanup standard for boar ron. that's one of the most pervasive pollutants, and it's found at levels far above health standards at many coal ash sites. also it's important to understand nobody's going to get wind burn complying with the deadlines in epa's >@úñrule. some of which stretch literally from here to eternity. this is not a fast-paced set of standards. i'd encourage you to look at those deadlines. before moving forward, i would respectfully ask that you consider two things, two actions. first, i think you should invite duke energy to appear before this subcommittee to talk about the spill that happened less than a year ago. because it's 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. here's what is duke said in 2009. we are confident based on our

ongoing monitoring maintenance and expectations 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 it's 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 wouldn't apply in a place like indiana, where duke also has plants. that's certainty. they have to close by dates certain. couldn't 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. i'd gladly give my seat up to you could hear from them. i'm sure jim would do the same thing. you could hear from them directly about what it's been like and ask them what kind of certainty they're looking for. i think you'll hear that like the certainty that leaking dumps will be closed and cleaned up sometime in their lifetime. i think you'll hear that. many of them have been waiting a long time. i think they'll want the certainty they won't get stuck with the bill for that cleanup. they'd 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 they'd like certainty they can bring their own legal action if the state doesn't do anything. i think you'd 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 you'll 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. i'm 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[ representatives of government agencies and trade associations. today i want to convey to you all the concerns of local people who want to see their communities prosper and their local rivers protected. let's look for a minute what we're 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 i've 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 water-filled, 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 win-win for all concerned. in north carolina, nothing was happening to force duke energy, which has a statewide monopoly to clean up its coal ash lagoons. 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. i'll 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 third-party lawsuits that may question which regulation is the leading one. so it would be very challenging. >> and for mr. rower because it is self-implementing, 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 risk-based decision to establish a pintoint of

compliance. for unlined units to even engage in corrective action, the agency recognized that the regulatory oversight from a regulatory agency wouldn't be there under a self-implementing rule. instead, we're faced with this self-implementing 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 risk-based 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. you're seeing a release but is it, in fact, presenting a risk to human health and the environment. and they can take that into account when they're 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 risk-based decision making process? >> the rule is rather clear about what you have to achieve in corrective action. you must meet that standard. if you don't meet that standard, you can't. i'd have to answer, no. i couldn't see how epa could stay a state program that incorporates that risk-based 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 they're 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. >> that's correct. the issue is it's not just a simple fix that we open up the plant that's approved. it's 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 30-day comment period that i'm going to do a rule. a second notice with the words of the rule in it with another 30-day comment period. then i have to publish a notice of a hearing in front of the environmental rules board for preliminary adoption. then one for final adoption. then the attorney general gets days to review it. the governor gets days to review it and the secretary of state publishes it. 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. on 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 isn't working for

many communities. in 2009 this subcommittee held a hearing on damage from coal ash disposal. we heard from victims who lost their homes their businesses and their health to coal ash contamination. 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 high-profile damage case and what it can teach us about compliance and about enforcement. mr. holleman, can you tell us a little bit about the dan river spill? >> 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 what's 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 it's done all it can do, and it's removed less than 10% of the ash from that river, thereby declaring 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. we've 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. that's one illustration. >> mr. schafer, do you agree with that assessment? >> [ inaudible ]. >> turn the microphone on please. i'm sorry. >> sorry. they felt like they weren't 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. >> gentleman's time expired. chair now recognizes mr. harper from mississippi. >> thank you mr. chairman. i'm 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. we've had people that have experienced that. we want to hear that. we want to make sure we're 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. that's your, okay. you put out a report that calls in harm's way coal ash. that was given to pennsylvania. they're 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. i've been in touch with pennsylvania about their -- how they monitored little blue and west virginia as well. we see they've leveed fined. they've 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 they're trying to be good stewards of the environment. and they are enforcing that. i'm 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 i've heard you say it several times here about the siding restrictions in that language. but didn't your group oppose the bill? either one of you? >> we certainly did. and we'd continue to do that. the siding restrictions in that legislation we don't think were comparable to the -- >> okay. the reason that i raise these issues to you -- if i could recover my time, please. if we don't pass legislation we stay the way we've been since the '60s. that hasn't worked. that's what's caused a lot of these issues. we're trying to find a way to get a resolution, and we're 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 wasn't productive. we had a bill. we're going to do it again this

year. i hope that people that have some concerns work with us because we've got to reach certainty. i heard all the systemtestimony. we've got to find a way to close the door so the people that are making the investment in their respective facilities know tomorrow they'll be able to continue to operate. it's 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. we're going to let you interject here before he goes next again. >> i very much appreciate that, mr. chairman.

i'll 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. it's really kind of different. you'll see very different statements. you'll see the state saying the sites leaked. you'll see them saying the company has practiced substantial and imminent danger to the environment. you don't see any of that coming through in the testimony to epa. the enforcement action the state took -- and i just don't want this point to get lost, came after the citizens filed a notice of their intent to sue the company for those violations. not before. it came after. pennsylvania, if they would like to tell you they were going to do it anyway i'd be happy to hear that. that's great. but we didn't get that feeling.

>> fortunately you got 17 seconds left. we'll allow mr. forbeck from the commonwealth of pennsylvania to respond. >> yes, actually i'm 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 that's what's 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 we're constantly looking at a facility. we're constantly looking at the compliance of that. and therefore, it's 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 they're actually closing the larnlest 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 it's obvious that the patchwork, the inconsistency potential, the uncertainty that would be created by self-implementation and enforcement by courts, that's a problem. that's 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, it's sort of like we're talking about either citizens have rights or the bureaucracy has rights and the two can't 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 there's time left i would welcome you as well to comment. >> as far as our members we feel we're all in favor of min mull 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 you're 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 we're doing would not in any way

negate citizens' access. >> it's a good question but we're 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. that's true. that's not what we're talking about. we're talking about once your commission or in our state environmental commissions put in place a permit or regulation and then the utility violates it. after the public has had input they just violate it. they don't comply. and then the state agency for whatever reason, which we have seen repeatedly refuses to enforce the very permits, laws and regulations that 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 rmjd8q=ie 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. i'm 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 don't see this law or this principle violating that. >> as long as you all don't 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 gentleman's time is expired. i want to assure people there's 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. >> i'll 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 there had been quite a good discussion here today as to the implementation and certainty as to certain things that have to be done. i'm curious, starting with mr. easterly, how much input did you have with epa when they were implementing the role? >> they're not implementing yet, but -- >> when they were formulating. >> we sent in comments certainly from ecos. we had a number of discussions with them of what we would like to see and some of it is in and some of it is not. >> what percentage of that? a ballpark. >> we like that it is subtitled. we along with other people are disappointed at the way it is being implemented. >> okay.

mr. forebeck. >> we chair the very similar feelings. we were involved heavily with the correspond and comments to epa about the role and as was said we do appreciate being d. it is the implementation under the salt waste management plan that was our concern. it does not have certainty we wanted to see. >> okay. just switching gears real quick, the question again that i asked the administrator before he finished up his testimony today, on the certainty especially on thelvñ beneficial use, miss johnson, especially with you and your testimony especially with the company that is really located near you, to make the board, do you think there is certainty out there right now? and do you think that there could be changes in the future from the epa? >> i believe based on what epa has stated that they clearly have the opportunity to revisit their determination on nonhazardous versus hazardous for ccrs. and that creates uncertainty.

and i will tell you in my experience that for the beneficial use community, for our plant that provides a significant portion of our ccrs to the beneficial use community, that uncertainty is a problem. and a later designation or determination of hazardous is going to put that beneficial use process at risk. >> mr. adams? >> i think in terms of the effect on the market so far it is too early to tell if there has been a positive effect. we have heard many comments that people are happy that epa has gone with subtitle d, but it is troubling to have that language in the preamble that they may want to go back and revisit the exemption. again, they said it in '93, said it in the year 2000, they said it again, they didn't warn hazardous waste management, but come back and say, well, we might need to revisit it again. we need action by congress to put an end to that chain of

events. >> how about you on the whole issue of the beneficiary use and the certainty? >> i personally don't think it is certain. when you say that you're going to reopen it. in history, the epa changed, for example, the maximum contaminant levels in drink water which sends the test, 100 times that standard suddenly makes something that used to be nonhazardous into hazardous, and i think that can change at anytime in the future and all businesses have to assess that risk and what could happen to them. >> just a little off topic, i border indiana i have halfway down, what is indiana's percentage of co for your electricity? >> it is going down, but i think it is still over 85%. it might be over 90%. >> it used to be around 90%. and ohio especially in my area, around 73%. with that, mr. chairman in the

interest of time i yield back. >> i thank the gentleman and before i adjourn i need to ask unanimous consent to accept a letter by the prairie river network, located in champaign, illinois, and accompanying attachments from local communities and resolutions. without objection? so ordered. and we want to thank you, all, for coming. a great hearing. looking forward to working with you as we move forward and this hearing is adjourned.1

as the hearing comes to a close, we'll continue our live programming in a moment with the annual march for life and rally taking place here in washington. we'll have more about that in a moment. the house, by the way, voting on the abortion legislation that is timed to coincide with the march that would ban abortions after 20 weeks from conception but provides exceptions in cases of rape or incest or when the life of the mother is at risk. but politico now writes that republican leadership late yesterday evening had to completely drop its plans and has reverted to old legislation that prohibits taxpayer funding of abortions. the evening switch comes after a revolt from a large swath of female members of congress who were concerned about language that said that rape victims would not be able to get abortions unless they reported the incident to authorities. the story says the new legislation does not stand a chance to become law, but house

republican leadership wants some sort of pro-life bill on the floor today when the anti-abortion march for life is here in washington. we get more on that bill now from a reporter covering the issue. >> the annual march for life taking place in washington on the anniversary of the roe v. wade decision. the house set to take up an abortion bill, but not the one they originally planned to debate. melanie zanono covers health policy for cq roll call and joining us from capitol hill. why the switchout? what happened? >> the house rules committee met late last night to tee up a different abortion measure to be considered on the house floor today. once it became apparent there were not enough votes to pass the original measure that they had planned to pass, which was a 20-week abortion ban bill on the house floor today. >> so the house bill is the one they're debating is one that would ban federal funding of abortion, but didn't this -- didn't this pass the house last year? >> that's correct. so this bill was passed last year by the house.

it was not considered in the senate. but this was considered more likely to pass once it became apparent that there was not enough republican support. there was about 10 or 10 gop holdouts, mostly led by women who started to express concern over a provision in the 20-week ban bill that would require the exceptions for rape and incest in the bill to be reported to law authorities. and so late last night, you know, they were meeting in closed door meetings and realized there was enough support and theyp get a vote on some type of abortion bill to coincide with the annual march for life which is taking place today. >> the headline of your cq piece says gop leaders pull the abortion ban on female members revolt. what is happening there? >> we know for sure two co-sponsors, both females jackie walarski and renee elmers withdrew their co-sponsorship of the bill in the last week or so and expressed concerns at a gop

retreat last week as well. so this has been mounting, a significant number of women in the gop party have expressed concern over this. and they didn't have enough votes to pass it without them. >> we heard from chris smith on the floor. and you tweeted some of his comments saying that he said the 20 week abortion ban bill just delayed will eventually be considered, just working through some bits. so in the details of that what are those bits they have to work through? >> well, it is my understanding that what is really at issue is that provision for the rape and incest reporting requirements. there is also a requirement that the exception for incest in that ban would have to only be committed by a minor and something that also is at issue as well. >> what about other conservatives in the house. what has been their reaction to the pulling of that original bill at least temporarily? >> well, there is some disappointment that this was not going to be considered toda