t their natural resources. a committee like this in washington usually hears from representatives of government agencies and trade organizations. 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 the wetlands and right beside our drinking water resources. they have put millions of tons of industrial waste containing toxic like arrest any and led 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 leech into the groundwater which then flows into the river 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 coal ash in the south king stones, tennessee and duke energy in the river and north carolina and virginia. one local water system is being forced to abandon public water drinking wells. fish have been killed in the hundreds of thousands. property owners have been affected and groundwater has been contaminated with substances like arsenic. my main point is this today. the congress should not take away -- should not take away the rights of local communities to protect themselves from this dangerous coal ash storage.

the congress should not leave the future of these people to government beaurocracies alone. the citizens right to force a new epa rule is essential. now, what we have seen in the southeast is clear. the state agencies have not effectively enforced the law against these politically powerful entities. let me give you examples. in south carolina where i've sent 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 take action to force a cleanup. local organizations instead enforce the law with the result today that all three utilities in our state are cleaning up every water filled riverfront coal ash lagoon they operate in the state, and they are creating jobs promoting recycling.

one of our utilities calls these cleanups a win-win for all concerned. in north carolina nothing happening with duke energy to force them to clean up coal ash lagoons. local organizations, not the stay, had to take the initiative to enforce clean water laws. but the first time north carolina was forced to take action and confirmed under oath that duke energy iseverywhere it stores coal ash in the state under oath, this polluting storage is a serious threat to the public health, safety, and welfare. now a federal grand jury is investigating both duke energy

and environmental agencies. as a result duke pledged to clean up four of its 14 sites and look at the rest. in tennessee, tva continues after king stones to store coal ash in unlined polluting pits. local citizens groups enforce the clean water act. only in response to that pressure the state of tennessee has now confirmed under oath that tva has and is violating tennessee environmental laws by its coal ash storage on the cumberland river near nashville. in the south we have seen 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 recognize myself for five minutes for the first round of questioning. first question for miss johnson. how would your company make compliance if florida 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. whatever the requirements would be, if one was more stringent than the other, we would look to comply with the stringent rule. yet in this case we would know both regulatory regimes competing with each other for compliance. not to mention it makes us vulnerable aspirator of a third party facility lawsuits that would question which party is the leading one.

it would be challenging. >> in the final rule because it's self-implementing epa eliminated much of the flexibility of corrective action program that exists under other subtitle d programs. could you please walk us through what flexibilities and what that would mean for corrective action? >> thank you. there are a few instances where agency contemplating a different approach to allow for potentially a risk-based decision to establish a point of compliance to establish alternative groundwater standard. for unlined units to engage in corrective action and not to have to shut down sum arlie the agency recognized regulatory oversight from regulatory agency wouldn't be there for self-regulating rule. to make sure risk-based decision making is appropriately applied and backed away from that. instead named with

self-implementing rule. take away tools regulatory agencies have in prescribing cleanups and prescribing corrective actions. >> yeah. 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 downgrading from the facility. seeing a release. is it, in fact, presenting a rick to health and environment. they can take that into account when they are making a decision about whether corrective action is needed or what type of corrective measures must be implemented by the utility. >> in your opinion would epa be able to approve a state program that incorporated any 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. i'd have to answer, no, i don't

see how epa could say a state based decision making is equivalent to federal raoul. >> as an experienced regulator yourself, i assume you've spoken with your counter-parts in other states. can you share your thoughts on the rule and particularly the implementation. >> as i testify we have a real issue with the implementation because we feel it still would be a dual process. it would be confusing for the states. they have to decide whether or not, one they are going to open up their salt waste management plan. even if they do, will that really even eliminate the dual regulatory regime. we do not think it will. >> who testified in their opening statement about the six months required under epa? >> that was yours. >> in some states might take 18 months to do their solid waste plan based upon the laws in the state and hearings and notifications and the like.

>> that's correct. the issue it's not a simple fix. open up the plan and approved. it's a public participation process, which is fine. but that will take some extra time. >> finally my last question for mr. easterly, written testimony states approval of 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 the governor 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 go into effect. in my state i have to publish first notice 30-day comment period i'm going 2nd a rule. second notice with words, another 30 day period. then i have to publish a notice of the hearing in front of environmental rules for preliminary adoption. then one for final adoption.

then attorney general gets days to review it governor and isn't of state and it takes 18 months. >> and i thought we were bad. >> recognize gentleman from new york. >> thank you, mr. chairman. thanks, everyone. safe disposal of coal ash poses risks to human health and environment. the number of damage cases cited by epa in final rule is ample proof that the current regulation isn't working for communities. in 2009 the subcommittee held a hearing on damage from coal ash disposal. we heard from victims who lost their homes businesses and health to coal ash contamination. at times hearings continued. hopefully implementation of this rule will reduce events and their costs going forward. for today i'd like to focus on a high-profile damage case and what it can teach us about compliance and about

enforcement. can you tell us a little bit about the river spill? >> yes. it had been a real tragedy. how it happened reveals why oversight hasn't work. the basic cause is the dan river site is an old site like everyone in north carolina you have these old pits somebody in the course of constructing that site had the bright of putting stormwater pipe under this coal ash lagoon. back in the 1980s duke had received in its own files and the state had a dam safety report about this problem of pipe under coal ash lagoon.

in expenditure reports there were constant reference, be sure you check this pipe, be sure you check this pipe. be sure you watch what's coming out of this pipe. instead this old site, which unfortunately was built right on the banks of dan river, which is true of most all these facilities, right on the banks of the river, right upstream from drinking 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 pleated water into the dan river. subsequently duke has done all it can do, and it has removed less than 10% of the ash in that river, there by declaring defeat. once one of these spills curse they cannot clean it up. why were we even in a position

this should happen? because we were engaging in the full hardy practice of storing this industrial waste in a river-sized lagoon filled with water, held back by earth earthen dikes with rotted infrastructure. had that ash, as its 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 our best position to enforce coal ash disposal requirements. do you think states have proven their ability to effectively enforce coal ash rules. >> 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 the notice the citizens sent, the state was forced to file a lawsuit. six months before hand it stated in writing in a public filing under oath that duke was violating state and federal clean water laws at that site. 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. schaeffer, do you agree with that assessment? [ inaudible ]

>> turn the microphone on please. i'm sorry. >> i'm sorry. they felt like they weren't getting a response to the state and response to complaints. we filed notice on their behalf to bring a suit. the state turned around and decided the site presented an eminent substantial endangerment, required closure and a pretty aggressive cleanup. the state did credit citizens for getting that result. >> thank you. >> time expired. recognize mr. harper from mississippi. >> >> thank you. i'm going to yield my time to the gentleman from west virginia, mr. kin virginia. >> thank you. appreciate that. whole host of subjects with this panel we have before us. one of the issues that has been dear to us in the panhandle of

west virginia has been the run. we have not had, mr. schaeffer, despite your comments, we've had the havens here. we've had people experience that. we want to theer that. we want to make sure we're sensitive to that. this panel and 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 moving testimony. little run is under your group, environmental integrity project. is that yours? you put out a report that cause in harm's way coal ash endangering americans in their environment. that was given to the pennsylvania because they are the ones primarily responsible for little run.

they did an exhaustive study because they want to respond. these allegations, these threats, they come back and say based on the review of the information in this report for this particular facility dep of pennsylvania concludes the allegations requiring groundwater and surface water contamination are unfounded. there are responses dep looked into it. i have pursued this. we need to be careful about that. i've been in touch with pennsylvania about how they monitored little blue. in west virginia as well. we see they levied fines. they have, indeed done what they were they were going to do. that was enforce the law and requirements with it it appears

to me from their reports and response they are trying to be good stewards of the environment. they are enforcing that. i'm curious, we passed legislation, 112th 113th that dealt with the existing and future empowerments. line addressing that issue. i've heard you say several times here about the citing restrictions in that language. but didn't your group oppose the bill? either one of you? >> we certainly did. we would continue to do that citing restrictions in that legislation we don't think were comparable -- >> the reason i raise these

issues to you is -- if i can recover my time, please. if we don't pass a legislation then we stay the way we've been since the 60s. that hasn't worked. that's what 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, but to defeat it as they did over in the senate that wasn't productive. we had a bill and we're going to do it again this year. i hope that people that have some concerns about it work with us because we've got to reach certainty. i heard testimony. we've got to find a way to close the door so people making investment in respective facilities know that tomorrow they will be able to continue to operate. so it's very important that we pass

pass, close up loopholes issues that defined this as a negative. with that, i thank you for your testimony. i hope you'll continue to work with us, all of you, the entire panel, as we perfect this, if we need to go even further with it. so with that i yield back the balance of my time. >> without objection, ask unanimous consent to allow mr. schaeffer to respond for a minute. we kind of abide by rules. 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. it's different. you'll see the states saying the sites leaked.

you'll see the company, imminent and substantial endangerment to the environment. you don't see that in any testimony to the epa. the enforcement action the state took, and i don't want this to get lost came after the citizens filed a notice of their intent to sue the company. pennsylvania if they tell you that, that's great. we didn't get that feeling. >> unfortunately, 17 left. the great state of the commonwealth of pennsylvania to respond. >> yes. i'm very familiar with little blue run. this is familiar to me in pennsylvania. signed a consent decree going through the procedures to close this facility. we actually this had been looking at the site long before the suit was filed.

if nnganything that's the beauty. all these factors in place constantly looking at a facility. constantly looking at the compliance of that. therefore, it's a moving target. at one point maybe one thing and another in the future, we have those monitoring places that can tell that. we started enforcement procedures before that. because of this, the issues that we found, they are closing largest coal combustion empowerment in the united states in an environmentally safe manner. >> thank you very much. now because of the magic of our rules, chair recognizes the gentlemen from west virginia. are you done? okay. thank you. chair recognizes gentleman from north dakota for five minutes. >> thank you, mr. chairman, and the panel. i want to get to one very

specific point to me its obvious patchwork potential 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 front. but i would like two regulators to speak to the issue. if we were to tighten that up put privacy in place, it is in so many areas like this, and codify the language in the epa certainly the definition nonhazardous nonhazardous. do the citizens of your states or any of our states lose the ability to appeal, complain. sort of like we're talking about either citizens have rights or beaurocracy has rights and the two can't go hand in hand. as a former regulator myself,

frankly, we heard more from citizens in these areas 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? if time is left, i certainly would welcome you to comment on that. >> as far as our members we feel we're all in favor of minimum federal standards, codification and certainty of it is the key point that was missing in all this. we do not think that citizens will lose their ability to have a public forum or appealing of decisions, no we feel that will continue. >> and the thing that would help by having a federal law and certainly epa rules that would help, there are a number of states luckily not including my own, where it is not allowed to

have a more stringent regulation than the federal government. so having this federal rule and having a law that says you must do this i think will help a lot so those states will have the program at the state level. at the state level people on the ground, in the field for citizens to talk to. they certainly can come, in our case in indiana, they have legislators out there and they do have input. >> same question. this is a concern to me, franks ly ly what you raise. i want to make sure what you're doing would not negate citizen access. >> it's a good question. we're really talking about two entirely different things. citizens have the right under federal and state statutes to comment on, be present at hearings as you saw as a state commissioner, in determining whether a permit is put in

place, adopted. that's true. that's not what we're talking about. we're talking about once you commission or our state environmental commissions put in place a permit or regulation and the utility violates it after the public has had input they just violate. they don't comply. then the state agency for whatever reason which we have seen refuses to enforce the very permits, laws and regulations produced through this public comment period so it makes it pointless. you go comment 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 have participated in creating. in our state, our public service commission which held hearings on this topic one of the commissioners expressed shock duke had not yet moved its ash from one of the sites present there and was not complying with

the permit and regs our state regulatory agency put in place. >> did this shocked commissioner have any opportunity to do something about it? in other words, state legislators, i assume they are elected, governors elected public service commission is elected. i'm just seeing it -- these things including enforcement being closer to the people seem to be better for the people than removing it from the people. >> it is in the hands of the people. the people who are taking this enforcement action are local community people going to their local state or loam federal courthouse. these are people who live next door to you and me people in the community. >> i don't see this law, this principle violating that. >> as long as you all don't fool with or mess with the citizens right to sue, we still have the right to sue. the citizens have the right to go forward.

if you were to affect that you are taking rights away from people and saying they belong to a beaurocracy that may or may not -- >> time has expired. i want to assure people there's no discussion in the last bill of alleviating or taking the citizen's right to sue, so you can rest comfortable. votes are called. we still have one member that wants to ask question, so recognized for five minutes. >> thanks to the panel and your patience. we have a different series of votes today. if i could just go down the line real quick with a few of you, there's been quite a good discussion here today as to the implementation, uncertainty that have to be done. i'm curious, starting with mr. easterling. how much input did you have with

the epa when they were implementing the rule? >> they aren't implementing yet. >> i'm sorry, when they were formulating it. >> sent in comments. we had a number of comments what we would like to see. some of it is, some of it's not. what percentage would that be? just kind of a ballpark? >> we, along with other people, are disappointed at the way it's being implemented. >> we shared similar feelings. we were involved heavily with comments to epa about the role. as we said we appreciate it it is implementation on the salt waste management plan that is our concern, does not have certainty that we wanted to see. >> switching gears real quick, question again that i'd ask the administrator before he finished

up his testimony. on the beneficiary use, miss johnson, you in your testimony with the company is really located near you to make the board. do you think there's certainty out there right now? do you think there could be changes in the future from the epa? >> i believe based on what epa stated they have opportunity to revisit their determination on nonhazardous versus has did you say for ccrs. that creates uncertainty. i will tell you in my he experience 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. a later designation or determination of hazardous is going to put that beneficial use process at risk. >> mr. adam? >> i think in terms of the

market so far, it's too early to tell if there's been a positive effect. we have heard comments people are happy epa has gone with subtitle d. but it's troubling to have that language in the preamble they may want to go back and visit the bevel exemption. again, they set it in '93, 2000, said it again that coal ash didn't warrant waste management but they come back and say we might need to revisit it again. we need action by congress to put an end to that chain of events. >> mr. easterly, how about you, beneficiary use and certainty? >> i personally don't think it's certain when you say you're going to reopen it. history epa has changed, for example, maximum contaminant levels in drinking water, hazardous leech test 100 times that standard. suddenly makes something that used to be nonhazardous into

hazardous and i think that can change any time in the future and all businesses have to assess that risk and what could happen to them. >> just a little off topic mr. easterly, since i border indiana, about halfway down, what's indiana's percentage of coal for your electricity. >> it's going down but still over 90%. >> i remember it used to be around 90%. in ohio my area around 73%. with that mr. chairman, in the interest of time i yield back. >> i thank the gentleman. before i adjourn i need to ask consent to accept a letter by prairie river network located in champaign, illinois, and accompanying attachments from local communities and resolutions. without objection. so ordered. i want to thank you all for coming. great hearing. look forward to working with you as we moved forward and this hearing is adjourned.

coming up at 10:00 a.m. eastern, loretta lynch, president obama's nominee to be the next attorney general appears before the senate judiciary committee for the first day of her confirmation hearing. that starts live at 10:00 a.m. eastern here on c-span3.