ate first. i talked to the leadership about would that be ok? and they agreed that it would. the concern that people had going back then was, but those -- will those members show up? they are not always enthusiastic about attending these joint sessions. so that was my introduction to it. you have talked to other three there is some consensus among the four. i'm not saying that it is a big challenge. people usually would cooperate. they have raised their concern about attendance, this or that. i know we would be bursting at the seams. we were with attendance. again, i think everybody recognizes that we have to have our own -- i'm not going to go to them if we don't have our own agreement. so when i was speaker, we had king abdullah of jordan,

president sarcoys of france. chancellor merkel of germany and president calderone of mexico. it was initiated by congress but agreed to by all four leaders. so it is out of the ordinary that the speaker would decide that he would be inviting people to a joint session without any bipartisan consultation. and of course, we always -- our friendship with israel is a very strong one. prime minister netanyahu has spoken to the joint session two times already. there are concerns about the fact that as i understand it from this morning, this presentation will take place within two weeks of the election in israel. i don't think that is appropriate for any country that

the head of state would come here within two weeks of his own election in his own country. the more serious part of your question is about the sanctions. yes, the president was correct in his presentation on the strength in which he presented his appeal to congress that we not have sanctions at this time. putting it in perspective, this administration, working with our allies, the permanent five, that is the p-5, the permanent members of the security council plus germany, that includes -- that includes france, italy, u.k., russia and china. think of the challenge to bring consensus on a negotiating position with those five countries and then plus germany. the p-5 plus one.

they came together, very delicate negotiations. the success of the obama administration to have that happen. it took time. it has strength. and those negotiations have taken place. they needed an extension to see what was possible. we all agree that iran cannot be allowed to have a nuclear weapon. that is important. that is probably the most important item, to stop the proliferation. of weapons of mass destruction, an important pillar of our foreign policy and a shared view of our allies on this. so these negotiations have gone on for a long time. they are delicate and we made it really clear that a bad deal is not anything we're going to accept. we have also made it clear that there are sanctions at work that are multilateral with these same countries and also we have

bilateral sanctions and that has been a force to bring iran to the table. so is it necessary to show what we can do? everybody knows that congress can pass sanctions any time. so what is the point? what is the point? the problem is that it could seriously undermine the delicate diplomacy that is at work. i see in "the post" today that four foreign ministers, france germany, u.k. plus the e.u. have written not to do the sanctions. so our president has a plan. it has so far taken us down a path that has frozen the capability in iran thus far. it may or may not succeed. but we cannot have it fail

because congress wants to flex its muscle unnecessarily when these negotiations should rise and fall on what's happening in those negotiations, recognizing the strength that that diplomatic initiative of p-5 plus one brings to the table. and so what is the point of sanctions? and if that is the purpose of prime minister netanyahu's visit two weeks before his own election right in the midst of our negotiations, i just don't think it is appropriate and helpful. yes? >> [inaudible] >> you know what? something that says politicians should determine what affects the health of a woman, her life, her health and the rest. i don't think it is up to politicians to do that. that's why we are very overwhelmingly opposing what is

going on the floor of the house. >> do you think you'll block it? >> i don't know if we will block it but we could have a veto. >> you said that you think boehner was inappropriate in inviting netanyahu. you think it was a mistake in diplomacy or protocol? >> it is out of order in terms of the protocol and respect. the speaker of the house has awesome power. i know that. i've been there. the fact, though, is that that power is not to be squandered. we live through a period of time now under republican leadership where they have gone outside and

said we're open and transparent and all the rest when in fact that is not the case. we had bills on the floor this week that had one rule. they don't want to have to debate. they don't want to have to have the discussion, the transparency that bringing each bill would enable in the course of forming the committee. the speaker has unilaterally cut the size of committees since he has become speaker. can you imagine if i ever did that and decided that the committees were going to be smaller, what the reaction would be. somehow the press has chosen to ignore that. that is not right. they don't have diversity. we do. we need representation on these committees and the speaker cuts them. there has been a series of things, just unilateral action that doesn't have to be that way.

maybe we will all agree that certain committees are too large or too small. just to decide that my members don't want to serve on education so your members can't either, so we're cutting the size of the committee. when the speaker did this -- is anything a surprise around here? no. it's hubris to say that i'll rule. i'll decide. the election is taking place within two weeks. the invitation is for march 3 and the election is the 17th, something like that. and also the fact that what is the purpose of it? the purpose to come and talk about sanctions, to talk about a policy and opposition, to the policy that our president has just put forth in his state of the union address and that has been in operation for many months.

whatever the outcome of these talks, make no mistake, the president has taken no option off the table in stopping iran from have a nuclear weapon, a weapons of mass destruction. but his hand is strengthened if he exhausted every diplomatic remedy but to jeopardize that diplomatic remedy will lose credibility world and national newswide. -- worldwide in that regard. yes, ma'am? >> the abortion legislation that was going to be on the floor. did it surprise you at all that there was this backlash from some of the women and again, just putting on your old speaker's hat. speaker bohner sometimes has had difficulty corralling his members. do you have any advice for him? >> let me just say this. i don't know all the particulars

because this is happening -- we found out last night that they were pulling the bill and now they are putting a bill out there that makes matters worse. so when you say this isn't about any improvement because of the actions that were taken yesterday. and the improvement in the policy, it makes matters worse. it makes permanent the hyde amendment. we haven't done that before. it undermines the ability of a woman to use her own money for her own insurance for reproductive services. this affects millions of people in our country and this affects the district of columbia. this is a much broader bill. this will look bad to the young people that we're hoping to attract if you have a bill like this that was worded the way the bill was. for cosmetic reasons, they thought that wasn't a good idea.

now they are going to a much worse bill. i don't know what the progress is and how moderate the influence was there. but i'll not inside their caucus. you're just going to have to talk to them about all of that. this was not a success for women and their reproductive health. yes, ma'am, one last question. >> on the abortion issue i understand your position on the legislation, when it comes to the matter of whether or not an unborn child is a human being at 20 weeks gestation. what is your personal opinion? what do you believe it is? >> it is really interesting that you would come to these meetings to talk about it. the fact is what we have said. the life and the health of the mother is what is preeminent when a decision is made about women's reproductive health. it isn't an ideological fight. it is a personal health issue.

as a mother of five in six years, i have great understanding of this issue, understanding of it more than my colleagues. in fact, one day, many years ago, maybe before you were born, when i was a new member of congress, as a catholic and mom of five, opposing some of the initiatives similar to what -- in the same vein of what we have today when the republican members got up and said nancy pelosi thinks she knows more about having babies than the pope. yeah. yeah. that would be true. [laughter] so in any event, this is up to women. their conscience, their god, their doctor, their health, their faith, survival, that is about what the decision should be. decisions about women's reproductive health should not be made by politicians in washington, d.c., but should

honor the decisions that have been made by the supreme court the decision made by the supreme court, recognizing the right of women to have that choice. thank you all very much. bye-bye. >> democratic leader nancy pelosi talking about the house speaker's invitation to the israeli prime minister to address a joint session of congress. prime minister netanyahu is scheduled to be in washington, d.c. on tuesday, march 3. we'll have live coverage on c-span. coverage of the u.s. conference of mayors in washington continues friday. we'll hear from former mayors serving in the obama administration including three cabinet secretaries. >> here are some of our featured programs for this weekend on the c-span networks. c-span 2, book tv's afterwards,

mike huckabee on america's current political and cultural landscape and sunday night at 11:00, julian zelizer talks about president lyndon johnson and his great society. and saturday lectures in history. the role of the british royal air force and allied strategy during world war ii and sunday evening at 6:00, american artifacts. tours the school's amelia earhart collections. find our complete television schedule at cspan.org and let us know what you think about the problems you're watching. call us, email us or send us a tweet. join the c-span conversation.

like us on facebook. follow us on twitter. >> next a house panel looking at an e.p.a. rule on the disposal of coal waste, known as coal ash. officials from the e.p.a., energy companies and environmental groups testified. >> i want to thank my clears for being prompt.

we want to call the hearing to order. i would like to recognize myself for five minutes for an opening statement. we welcome each of our witnesses and appreciate your willingness to be here today to talk about the final coal ash rule release by e.p.a. in december. we are eager to hear from you and hope mr. stanislas will provide implementation of the final rule and also address some questions and concerns. we will hear from a number of stakeholders regarding their initial impressions of the final rule and any concerns they may have and discuss the final rule and legislation considered by this committee and floor of the house the last couple of congresses. first, i would like to commend the e.p.a. for getting the final rule out in time to meet the court ordered deadline weighing in at over 700 pages. i'm sure that was no small undertaking and i would like to acknowledge that in finalizing the rule the agency faced a genuine dilemma. create and enforce a permanent

permit program for coal ash as defined or promulgate self-implementing standards for coal ash as non-hazardous waste under subtitle d. i am pleased that the e.p.a. chose to regulate cool ash under sub- title subtitle d so it will be beneficially used like this. because it did not have the authority to create a permit program for coal ash. it lays out an entirely self-implementing program that will be enforced through citizens suits and unavoidable lead to an unpredictable array of regulatory interpretations as judges throughout the country are forced to make extremely technical compliance decisions better left to a regulatory agency. the final rule sets up a dual regulatory program. e.p.a. strongly encourages that

states incorporate the requirements into their solid waste management plans. as currently drafted they do not require them to use the requirements. meaning even if the states adopt the more stringent requirements they must comply with both the state and federal requirements. there are some other provisions in the rule potentially troublesome and we hope to discuss today including the retroactive application of location and impoundments that exceed a groundwater protection standard close with no opportunity to remedy the problem through corrective action. last, but not least, the e.p.a. has removed the flexibility of the correction action program as it exists for other programs under subtitle d. it is an understandable that the agency may feel the need to tighten certain restrictions because the rule is self-implementing.

however, by removing flexibility regarding the boundary within which compliance must be demonstrated and flexibility to determine the appropriate cleanup levels and eliminating costs in the factor that can be completed in corrective action, the final rule jeopardizes the risk-based cleanup decision at the coal ash unit. it also creates uncertainty at coal ashfacilities. disposal while we acknowledge the amount of time the e.p.a. put into drafting the rule we believe legislative session might be required to set minimum standards and allow states to enforce programs to eliminate -- implement the standards we feel could still be the best approach for coal ash. i can assure you we will be thoughtful with respect to the retirements and how they differ

from the legislature we move through this committee and the house during the last congress and update the legislation as necessary. as mr. stanislaus pointed out, there are some important issues that our previous bill did not address, in particular regulation of impoundments and we will address these as we move forward. i would like to thank the administration for all the cooperation on this issue. e.p.a. has been constructive and helpful during the last congress and as we work through the issues with the final rule. we appreciate all of our witnesses for being here. i would also thank mr. mckinley who has been a driving force on this legislation and like to express my appreciation to fellow committee members as we continue to push forward with effective legislation of coal ash. with that, i yield back my time. >> thank you. let me just indicate how pleased

i am to be able to work as ranker on this subcommittee with you. i appreciate the suspect our respective parties have asked us to lead the efforts with what i think is very important work that comes in the overview of this subcommittee. i believe we will have a very productive year and session and look forward to it. congratulations on your continued leadership. good morning and thank you chair for holding this meeting the environmental protection industry's final rule to establish minimum national standards for disposal of coleal ash. over the years it has been associated with inadequate management of coal ash disposal. spills related to coal ash impoundment failures have polluted water supplies and destroyed private and public properties and resulted in expensive cleanup efforts. i am certain that the residents of these unfortunate communities feel this rule is long overdue. e.p.a. is to be commended for its extensive process of public engagement on this issue.

they sorted through 450,000 statements submitted during the public comment period on the rule and held eight public hearings in communities across our country. e.p.a.'s rule is responsive to industry community's concerns classifies coal ash as hazardous waste would harm coal ash recycling efforts in coal ash in new materials and products and is responsive to public health and environment advocates. because for the first time we have federal standards for coal ash disposal sites that will set a floor of protection for all communities. of course, the rule from either vantage point is not perfect. given the despairtive opinions about what would constitute coal ash disposal that has quieted the debate on this issue

somewhat, but there are still deferring opinions how coal ash should be classified and regulated and we will hear some of these opinions today. i would have preferred to see a stronger regulation given substantial risk and tremendous damaging costs of recent spills especially the one experienced in tennessee in 2008. with this rule in place, states and utilities can begin to address deficiencies in disposal operations. communities can access coal ash disposal facilities and have a benchmark for performance against expectations. now that the work is final the work of implementation begins. ultimately, that is the only real test whether this rule takes the correct approach or not and will take some time to evaluate whether the implementation will achieve safe management of coal ash disposal. i believe it is this

subcommittee's job to continue in its oversight on this issue and others going forward. to implement this issue. i think either approach is premature. i would observe changes in regulation or in law do indeed take a long time. hitting the restart button now would only lead to continued uncertainty and risk. we have had far too much of those already. this rule was years in the making. as i said earlier, i would have preferred to see a stronger regulation. i'm not willing to second-guess an approach yet to be implemented or evaluated. once that rests on the extensive public negotiations and process by years invested by the interested parties and the agency. this rule should move forward. we should give this approach an opportunity to work and monitor it and closely evaluate its effectiveness. let's get on with it. as we go forward we see how well this approach works.

we certainly retain all options for actions if it does not. i thank all witness forses for appearing today and their invaluable contribution. i thank our chair for calling this forward and look forward to working with you on this issue and our subcommittee as we begin our work in this 114th congress. with that, i yield back. >> thank you, my colleague for his kind words. now, i'd like to yield to the chairman for the full committee, mr. upton. >> thank you, mr. chairman. today our multi-year quest to solve the coal ash issue continues. i want to thank and welcome back our frequent guest e.p.a. administrator stanislaus. you worked long and hard on coal ash and always engaged with us very constructively and we appreciate that. navigating this issue is a tough job and more difficult by gaps

in current law. most of us can agree that coal ash does not warrant legislation as a hazardous material, and i'm glad the e.p.a. agrees but there is not a state program for non-hazardous waste. when the federal court set a december 13 deadline for the e.p.a. to publish a final rule for coal ash we looked to see whether the epa's rule would be the last word on the subject. we along with other witnesses are asking the sail thing and left with more questions. if we don't legislation, how will e.p.a.'s rule be implemented and enforced? will there be one for each state, one federal and state based? can we expect a dramatic increase in citizen suits? it could lead a path to all sized for greater uncertainty and expense. mr. mckinley's bipartisan bill

in the last congress went a long way with solving challenges of coal ash management. legislation recognizes that states like michigan were already running successful disposal program and allowed states to continue to use their localized regulatory expertise. i appreciate the e.p.a.'s input in our legislative process. they acknowledged some benefits and asked for changes many of which we made to the bill. our goal is to get the job done right and we're willing to discuss further legislation to ensure we have a workable bill in place. we want to continue to work with both bodies and both parties to achieve the best outcome. we continue to work with the stakeholders, co-ops and other advocates. our goals are three fold, put the right protections in place. put coal ash generators and users straightforward, standards and procedures to follow and

grant states the authority they need to implement and enforce federal standards while taking into account distinct local conditions. mr. chairman, with all the innovative ideas and refinement that's gone into the legislation the last couple of years, i welcome again to listen to shareholders. i yield the rest of my time. >> thank you, mr. chairman. job creators detest uncertainty. let's make one thing clear. this proposed regulation does not provide certainty. in this spirit of the super bowl upcoming let me explain with an analogy. if a quarterback knew what defense was going to be put up against him, he knew with certainty what defense he would logarithmically likely be able to move the ball down the field much more easily if he new with center what he faces.

this is what applies to this regulation. it provides no certainty to the business community. let me give you some examples. you have already heard from the two chairman talk about that. let me reinforce that again. the rule results in potentially conflicting federal and state retirements. federal judges in neighboring jurisdictions could make decisions in conflicting compliance. but more damaging on page 18 of the rule. it says in quote, this rule defers a final determination until additional information is available. that's not acceptable. how many times must there be a final determination that coal ash is not hazardous and be handled in a different way? in 112 and 113th congresses the house passed legislation codifying the conclusions

rendered in the 1993 and 2000 reports authored by the e.p.a. we're trying to develop certainty. certainty not just to the business community but to the health of the people we're trying to protect. and in fact mr. stanislaus, i thank you, we had a very good working relationship. you said the legislation we passed was something you could work with. we want to keep that working relationship going to keep up with certainty. bottom line, unfortunately we have a regulation that doesn't provide certainty. it would be wise for the committee to to once again passover pass the legislation. >> it was nice saying that so welcome. >> thank you, mr. chairman.

i also wanted to start by congratulating my colleague from new york and continuing his role as ranking member of this importance of committing -- subcommittee. let me just turned to the topic today. i would like to commend the epa for finalizing the criteria for national disposal. this will for the first time provide the framework to address a serious problem. unsafe disposal poses a serious threat to the environment. i am happy to say that each of these risks are addressed in the new rule. epa must determine that criteria needed for coal ash in the year 2000 that was 15 years ago now and the need for this rule has only become clearer. we now have 157 documented cases of health to the environment.

it's possible under this rule that number may only go up because more contamination will be detected. this is from a robust public process and several rounds of public comment that reflects the import of over 450,000 commenters, including state, industry groups and individuals. and it addresses many of the concerns that this subcommittee has heard in past hearings. by proceeding under subtitle d it lays out a framework for states to incorporate the framework into an existing program and by requiring public reporting of monitoring data and addressing some legacy sites epa address many concerns by advocates not everyone is satisfied with the rule. many in the environment community argue that only a subtitle c rule would provide

self-help and possible the nature of the rule could lead to inconsistent compliance. but as a whole, the rule is an important step forward. it will offer important protections for human health and the environment and many important protections that were not part of past legislative proposals. as we look ahead in the subcommittee, i think the publications final rule changes our role. we are no longer called upon to set natural criteria statute because those criteria have not set through a robust transparent process. we will have to i hope we can conduct that oversight in a bipartisan manner. again, i applaud epa for the hard work and look forward to the testimony and i would yield back, mr. chairman. >> i want to thank my colleagues again. now i want to recognize matthew stanislaus from the epa. i think you heard from a lot of members that this is one issue we really appreciate the work

that we have done together and we look forward to working with you more. you are recognized for five minutes. i and my staff have had the privilege of working to actually get it right in terms of getting a rule in place. this address the risks that we have identified. on december 19, epa finalize the coal ash rule. others will establish the first-ever ever national rule for the safe disposal of coal combustion residuals and landfill and surface impoundments.

in 2008 the catastrophic failure of impoundment of the tennessee valley facility and epa risk assessment and 157 cases of mismanagement caused damage to the health and environment clearly demonstrate improper management of coal ash poses an unacceptable risk to human health and environment. we believe there are extensive studies on the environment and human health. it establishes technical requirements for landfills under subtitle d of the resource conservation and recovery act. in developing this we heard 150,000 comments, testimony from eight public hearings supplemented by three separate public comments on data the foundation of the rule. the rule is strong, effective approach across communities to help protect water, land and air. the rule protects groundwater by protect k groundwater monitoring, immediately cleaning up groundwater, closing impoundment impoundments contaminating groundwater and providing installation of liners and mine fills -- and landfills.

it protects against catastrophic failures and extensive engineering testing and recommending closing for those that fail. and requiring an air control plan. further, we provide states and communities the information they need to fully engage in the rules implementation. the rule requires utilities to post alls a spectator of the rule on a publicly verified website to be sure states have access to monitor the compliance with the rule. the rule has been designed to provide electric utilities generating coal ash with a practical approach, save coal oosh ash disposal and reasonable -- coal ash with a practical approach and establish reasonable implementation timelines for this to occur.

we strongly recognize the role or state partners play in insuring compliance with environmental regulations. epa is looking forward to working close ily with our partners in implementation an states can align their programs with the federal rule by utilizing the solid waste planning and management process and submit revisions limited to coal ash federal requirements for epa for approval. the solid waste management plant can demonstrate how the rule incorporates criteria and utilizing state criteria and hi thoth cease where they want to be more stringent or otherwise working beyond the criteria. epa epa will be working for a streamlined process for developing and improving solid waste management plan. of

of course, the rule does not prevent a state from adopts more stringent rules if it wants to. i suggest they take time and seek epa's approval and conduct a necessary public process because the major elements of the rule is at least 18 months from today. further, the rule promotes beneficial environmentally sound use of cool ash. it does not change the consumption or -- the current exemption or regulation of coal ash ben beneficially used. the rule distinguishes between use and disposal and to users of coal ash. we have separate ideology for coal ash users -- methodology -- and applied thatl?%0n methodology to demonstrate that we have confirmed its continued use. i will close by stating we believe this is a traus milestone to protect communities

in which we live and work and working with state partners and utilities on ample mentation. and i look forward to your westerns. -- your questions. >> thank you very much. i'd hike to recognize myself for questions and we look forward to your good work and working with you. we see your partner behind you who will also be working under the final rule, no permits will be issued, isn't that correct? >> what we identified using the planning program is this state's 10 bill permitting program and submit that for epa to be approved. >> they can but there's no requirement or permitting process within the rule. >> that is true. once the

solid waste management plan is approved there will be a secular point of compliance. utilities can then implement through the state program, and we have made clear in the preamble, that compliance will demonstrate compliance- -- >> you understand why we're asking that because the legislation we moved last cycle said federal standards im implementation where there's certainty and goes to mr. mckinley's point. isn't it true states are not required to adopt or implement the requirements? >> clearly, they are not required but the states called on us to make this linement and why we established the solid waste program and states can implement the requirements and seek epa's approval from that and establish the alignment from our perspective. >> neither epa nor the states can directly enforce the requirements in the final rule

isn't that correct? >> that is correct. we believe again using the state solid waste management programs they can implement it once the state solid waste management program is approved and independently states can implement requirements of the rule. >> under your rule, the only enforcement mec.ismfa under -- enforcement mechanism under the recently reduced rule is citizen suits and litigation, isn't that correct? >> we actually believe the solid waste program when i proved will not result in excessive litigation. there will be litigation to enforce in those circumstances where states and others deem not to be in compliance. >> you're more optimistic than i am, i guarantee that. even if states adopt the rule, utilities have to comply with the state requirement and the federal

rule, is that correct? >> the rule is directly applicable to utilities. getting back to the solid waste plan there is an opportunity states have sought to align and integrate the federal minimum requirements into their program and seek epa approval for that. >> you understand the line of questioning in, it's kind of vague. they can or they might, we kind of hope they do, there is an expectation they probably will. but there's not a lot of clarity. then the other concern is, if you're relying on citizen suits. citizen suits will come, right? no doubt they will come. if they are regionally directed, you then have -- you could have a multiple standards throughout the country which aren't the same, based upon the litigation and the rulings in these different courts.

isn't that a concern? >> well, actually, we don't anticipate that. the rule is pretty specific establishing minimum federal requirements for protection of groundwater preventing catastrophic failure for addressing dust. we don't think -- if you move forward implementing that and the states can implement that within the state program and epa approves the state solid waste management plan we think there will be federal -- i'm sorry, national consistency. >> you are more optimistic than i am. you mentioned the preamble. if a regulated facility complies with a state requirement more stringent and therefore not the same as the requirement in the final rule will the regulated entity also have to comply with the federal requirement? >> i just want to clarify. if a state adopts more stringent, adds to the federal requirement. >> correct.

>> then gets an arule of from epa through a state solid waste management plan, the utilities would have to comply with stilly the state requirements and demonstrate compliance with federal requirements and additional requirements this state chooses to add. >> i think we will hear testimony in the next panel they don't believe that's true, there will be a two-fold process, the federal government and the state epa and that's one of the concerns we have with the rule so good people can agree to disagree. i i would like to recognize the ranking member of the subcommittee for five minutes. >> thank you. mr. stanislaus good morning and thank you for joining us. it poses serious threats to our health and environment. that is why i'm pleased epa has finally set national criteria for disposal of coal ash and states have requirements to

to follow. as i stated earlier, i would have preferred a stronger rule. public health and virmtal alenvironmental advocates say they would have preferred a stronger rule. but the rule does have safeguards. i would like to go over important protections of the rule with you to ensure disposal sites are not located in dangerous areas, it puts in place five restricti see if i'm interpreting them correctly. structures will not be allowed close to aquifers or wetlands, seismic impact zones and unstable areas. is that indeed correct? >> that is correct. they have to do analysis with respect to those location requirements and demonstrate whether they can safely operate and putting engineering measures to prevent any impacts. >> proposals we have seen would have included five restrictions to permit a small aquifer

buffer. i appreciate they include these protective requirements. next, to protect air quality the new final rule would protect dust plans and covering or erecting wind barrier, is that correct? >> that is correct. >> thank you. to protect groundwater contamination, at least one upgradeient well requirement and three down gradient wells. is that correct? >> yes. >> why did the agency find it important to specify a minimum number of wells? >> this is standard protocol that we fully understand the potential impact to groundwater. >> lastly, i would like to turn to the public disclosure requirements

to this rule. the rule establishes a maximum floorp for floor for what will have to be done and public information and document their compliance with a wide range of criteria with lorkz design and groundwater monitoring. is that correct? wax that is correct. >> these disclosures will be essential in promoting transparency for communities. although a subtitle c rule might have offered more protection and enforcement and this will protect the human environment and go beyond past bills. i want to thank the epa for finalizing this bill and seeking public comment in the course of development. with that, i thank you for appearing here this morning and i yield back. >> just a notification to my colleagues. the vote has been called. we have 10 minutes before a lot of us have to get there.

i think we get five-minute sunnyside. and then we will recess to have folks come back to finish this panel. so the chair now recognizes the vice chair of the subcommittee, mr. harper, for five minutes. congratulations on your elevation. >> thank you, mr. chairman. mr. stanislaus, in light of the fact it is set at the mcl or background level of the cleanup, if a state chooses to utilize risk based cleanup coal based program under the established an alternative ground water protection standard, would the epa be able to include the plan as as stringent or less than the final rule? let me break this down. it's a super fund cleanup. you begin wh protecting groundwater in all cases. however, in selecting the cleanup remedy, you can look at the circumstance involved in the

cleanup. in the same way we provide all the on the ground factors brought to were on these decisions. with respect to approval of a cleanup plan, again, in the epa's approval of solid waste management plan, the state can choose to enable the state's approval of the cleanup plan. i i think there is that ability for states to do that. >> let me just ask this. if a state determines that if there is no human receptor for the groundwater and that a cleanup standard above the mcl or background is appropriate would that meet the minimum requirements of the rule? >> let me get back to you on a. >> ok, if you will let us know. i yield back. >> the chair recognizes the

the ranking committee member mr. pallone for five minutes. >> thank you. there is no question that coal ash can pose serious risks were not disposed of properly. many people have spent years on this issue and i commend the epa for finalizing this rule. do you have the confidence this final rule is protective of the public health and environment and in your view are there gaps or protections under this rule that need to be filled by legislation? >> i believe the rule is protective risks that we have identified. >> any gaps that need to be filled by legislation? >> we believe all the risks and information we put in place all the rigorous standards will provide protection.

>> what about beneficial reuse? will this rule restrict beneficial use to stigmitize coal ash? >> we don't believe it is. it is not subject to the rule. >> i expect we will hear from the second panel that legislation is needed under subtitle in the future. what factors might lead epa to regulate coal ash under subtitle c? >> to be clear we proposed an approach under dnc. we made a dissenter and -- we made a decision under d. the c proposal is no longer on the table. like any other rule in the future, it would go through the same ruler -- public notice and comment to avow your considerations. i have a stronger strong

confidence between the strong national criteria and solid waste management planning program and epa's approval of that, we believe moving forward we will have the protections necessary to protect the communities and working with the states in implementation. >> it's safe to say if coal ash does not become more toxic implementation of subtitle d was effective, epa d would have no reason to pursue a subtitle c rule. if it turns out ash does become more toxic and we find the states and utilities are not doing enough to protect human case, if that turned out to be the case, would it be important for the epa to pursue sub-title c, in your opinion? >> we have reflected and evaluated data from all stakeholders. we believe we put in place a rigorous rule to offer protection to protection to communities around the country. we are moving forward on implementation, working with

public stakeholders and utility to provide the protection. we are not looking at it further at this moment. >> i'm saying, those who advocate you shouldn't be able to pursue subtitle c regulation or eliminate that option if it turns out the ash is becomeing more problematic and the subtitle isn't tookdoing enough. do you think it's important to pursue subtitle c in every other eventually? >> we will look into implementation of this rule and see what issues are not addressed in the future. >> you don't want to comment on the possibility of pursuing sub- subtitle c and whether it's important. >> not at this time. >> thank you. i yield back, mr. chairman. >> i think we will recess now

and come back immediately after the vote. there should be two votes. you all will have time to stretch and get a cup of coffee. most of us will come back promptly after the second vote. this hearing is now recessed.

>> i want to call the hearing back to order. i think the next order of business is recognizing the gentleman from west virginia for five minutes for his round of questions. >> thank you, mr. chairman. thank you for appearing. as i said in my opening remarks i appreciate the working relationship we have had. just a couple or three or four quick questions, two of which might be yes or no here but the first one is do you personally think that coal ash is a hazardous material? yes or no. >> we have identified the various risks with coal ash mismanagement and put in requirements to pre--- to be protective against those risks

and the way we should establish liner and ground water program to be protective. >> but in and of itself as a material, whether it is in concrete or drywall -- >> yes. >> let me go from there. 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, with respect to the rule, we think it provides the kind of certainty -- >> i'm not talking about the rule. i'm talking about the bill that we had. it's all about certainty. i come from the business world. we need to have certainty. that legislation was tried to get that.

unfortunately, i know it was a reasonable effort, but it does not create certainty. so my last question might be this proposed rule provides us no assurance that coal ash will not be regulated as a hazardous waste in the future. could you explain the agency's justification for leaving that door open, 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? >> i actually think that we provide a tremendous center t in the from -- provide tremendous certainty in the final rule. i think we made very clear that beneficiary's are not subject to the rule to the existing

preventative protections that remain. coupled with other actions that we have taken, it will increase use of beneficial use. >> how do you deal with that -- on page 18, it says this rule defers -- defers, postponed's -- a final determination until additional information is available. i just wonder how -- that is like the door is wide open. some time, someone is going to make another determination that is going to be based on other information. i don't agree with you that there is certainty at all in this decision. i think it was well intended. it helps us resolve the differences between c and d, but it still the give us a view of tomorrow. if i am going to move the ball

down the field, i have to find at how are we going to shut down the door. >> in my opinion, i don't think we left the door wide open. we have been very clear. between the two proposals that we had for public comment, one is a c approach and a d approach. we went with the d approach to . the language you are referring to then goes on to say we didn't have full and complete information. one big area was how states would move forward with that program. so we believe very strongly that the combination of a clear consistent set of federal criteria coupled with a solid waste asthma program and epa approval of that will bring comfort and certainty with respect to those issues. we ashley don't think that the door is open. >> like i said earlier, i guess we are going to have to agree to disagree. we have that line was at

something can happen in the future. the next administration to come in with a different attitude than you have personally have had that makes it uncertain. so we just need to close that. let's continue working together on that and see if we can't close that, close the door on it . so i yield back my time. >> i reassert my and epa's willingness to work with you. we would also preamble that we would not do anything without any -- we think we have done a good >> mr. doyle from pennsylvania, for five minutes. >> thank you, mr. chairman. i want to thank you for

convening this hearing on the final rule. my constituents were concerned about the fact that this might limit beneficial reuse on the one hand or fail to protect public health on the other. img general he pleased with the rule. the epa has protected beneficial reuse and put in criteria that will inch or save disposal. i would like to ask you a few questions. the final rule prevents the beneficial reuse of coal in any way. >> no, beneficial use is fully protected and not subject to the rule. >> 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 -- recycling 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 opportunity, i know you have talked about it already, on the concern that we're creating a dual regulatory regime. potentially requiring owners and operators to adhere to a two set of standards. what does it mean when 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 with the requirement 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 is approved. we made it clear that 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 provisions. but you feel it addresses that

concern about 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 reclamation 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 plenty of times, and we always 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 and provide certainty without compromising the protections that we are trying to accomplish, and i think, should be to the benefit of everybody on all sides. mi wrong there? is there a better reason? >> i don't disagree with the overall views that will provide a substantial technical judgment. decisively for the reason you raised is why we are tying the 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. and i think that is noble. 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 multiple 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. that is really all i have. i appreciate the hard work. >> the chair recognizes the chairman form work carolina for five minutes. >> thank you, mr. chairman. how many tons of coal ash are produced in this country per year. >> i do not have that number.

>> you have any idea about what fraction of that is used in beneficial ways or construction or road grade material? >> i believe about 30%, but i can get back to you on actual numbers. >> is there more opportunity every -- four 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 expanding the beneficial use of coal ash. >> that is a part of the rule? >> that is right. >> i am a little concerned about citizen lawsuits with regard to the rule or potential legislation that might come out of this issue. how quickly do you think we will

start to see improvements in the safety of coal ash disposal sites as a root -- 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 of 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. studies 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 do you think they will revert to lawsuits to satisfy their concerns? >> well, i think that one of the reasons we put in this public disclosure, to respond to the 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 stifle 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, and empowerments. so, you know, i really can't provide an opinion as to what the effect of any legislation would be regarding at this moment. >> 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 there objection? 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 -- the 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 unit at a power plant have the same exact 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, impact in communities 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 empowerments, 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 -- an estimate of how many will close, and moving further out stream from those, what of's -- sort of reliability issues could be imposed on our grid? >> 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 location criteria, proximity to wetlands and are offers. then utilities will have to determine whether they are 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. but i can get you that data. >> i 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 impact will be in terms of citizen lawsuits and the instability the instability or lack of clarity that causes for an operator? >> because we have gone out and visited numerous coal ash

empowerments around the country we have reviewed information from utilities about different dimensions of empowerments. some are going to be more challenging to close than others. we do put in place in a specific way those circumstances where they can provide and enable themselves of extensions. we think the rule itself's provides bit ability. that would be coupled with the utility disclosing the circumstances, but we believe once you follow that, there will not be a violation of the federal rule. >> therefore, no citizen litigation would follow? thank you. i yield back. >> chernow recognizes the gentleman from ohio.

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 a little bit earlier, in your testament, you said it was beneficially used in 22 -- but 2012. again, in the testimony, we've had states saying boy, if the epa would change its mine, we're -- change its mind, we're going to require buildings to have it 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 the epa can give to the folks out there that there is not going to be a chain? if there is material that is actually being used inside of the building that a lot of folks are worried about, school districts are worried about, how do you define certainty, and how do we make sure the folks out there have that certainty of mind that the epa is not going to change in a couple of years what they are defining as a hazardous or nonhazardous material? x even before the finalization of the rule, because of this issue of certainty and risk and comments we received from the beneficial use industry, we began by developing a methodology to do -- evaluate the continued use of beneficial use. we use that methodology and applied it and confirmed that concrete and wall board, the largest two uses of coal ash,

continue to move forward. 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 -- finalizing the rule, continues to create uncertainty and we believe our decision to go with a proposal as opposed to the sea proposal provides a second set of certainty. the sea proposal is no longer on the table. we actually believe we provide a substantial certainty to the market. >> when you talk about the methodology, how do you go about that? who is at the epa sitting down at the table to really come up with a methodology to go forward with that standard? or what that should be set at? >> we have engaged beneficial

users in development of the methodology. this is a methodology to be used by users, by manufacturers, and by states to confirm that a product that uses coal ash, as opposed to one that is not, are comparable. therefore, it can be safe to replace virgin product. we think the methodology has been well received in the marketplace. on application of the methodology, to be specific, uses like concrete have been well received. >> mr. chairman, in the interest of the panel chernow recognizes the other gentleman from ohio, mr. johnson, for five minutes. >> thank you, mr. chairman. thank you, mr. director, for being here with us. let me get a clarification on

something you said earlier. the state program does not operate in lieu of the federal program, correct? >> that is correct. >> so, if the state program does not operate in lieu of the federal rule, then both sets of requirements are still enforceable correct? >> that is precisely because we have heard those comments because we have heard about that, the possibility that that is why we strongly believe that there is a vehicle to integrate the federal requirements into a state program and have epa approved the program, to have that alignment occur. >> so, for corrective action the final rule requires that if a constituent of concern is detected above a statistically significant level, the

groundwater protection standard must be set at either the maximum containment level, or at the background concentration. whereas, the proposed rule, like the municipal solid waste program, would allow the owner-operator to establish an alternative groundwater protection standard based on site-specific conditions. how does the epa anticipate that this will impact ongoing corrective action at coal ash disposal units in states that utilize risk-based decision-making? >> we believe rick -- risk-based decision-making that is core to a cleanup determination will continue. what we have done in the rule is we have brought the various factors used in the program to do exactly what you noted, to consider the site-specific factor. we begin with protected groundwater, protecting the groundwater. when you look at the specific cleanup remedy that fits a

particular situation, you evaluate the technical factors in determining the cleanup that is most appropriate to achieve the cleanup. >> that ability to establish an alternative groundwater protection standard based on site-specific conditions, that is still there in your view? >> what a utility would do is look at -- it is no different than establishing a cleanup option. i will leave it at that. >> going down to closure. if the owner or operator puts forth a realistic closure plan and indicates the facility needs more than the required amount of time to close in a safe and appropriate manner technically the plan does not meet the deadline. is the owner or operator out of compliance with the final rule

in that case, and at what point is the owner-operator subject to lawsuit when it puts out the plan with the longer closure date? or, when it actually does not meet the five-year deadline? you have an owner-operator that says it will take me longer than the rule allows to do it properly. what happened? >> that was a -- we received numerous comments precisely on that topic. we believe the five-years is adequate is many for the b units. because of the size, because of a particular geology, it will require additional time. in the rule, we have built-in that opportunity if the utility can demonstrate that those conditions exist, and we articulate on it -- a timeline, that will be in compliance with the rule. >> mr. chairman, i yield back as

well. >> the chair recognizes a gentleman from california. >> thank you, mr. chairman. thank you for having us here. i would just like to ask you, do you have a technical background? >> i do. >> what would that be? >> ima chemical engineer. i think they go well together. >> when we are 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? >> correct. >> evaluations understandings, beyond science going into probabilities and causes and effects, things of that nature? >> correct. >> i am glad to know you have that background. i will not speak to your law

degree, i am an engineer so i appreciate that. when it comes to the pas new rule which will set national criteria for the location, design, and maintenance of the pond in protecting the communities that live with this potential risk, first of all i would like to applaud the epa for moving forward. also, this effort is important, especially because, has it been determined or evaluated by the epa estimate most likely is affected by this activity in these ponds? is it more affluent communities low income communities? is there a disproportionate effect? >> we have not done a specific demographic analysis. clearly, communities that are adjacent to the facilities and are potentially impacted by a catastrophic failure. >> i know in the los angeles basis -- basin, if you look at income demographics and

geography, there is a skewing -- one side of town has a higher likelihood of this taking place. another, more affluent area of town has a less chance of the activity. i am just reflecting on what goes on in the los angeles basin. even with coal ash by the way, specifically, not just coal ash but other elements as well. one of my questions to you is, can you describe some of the ways this will make coal ash ponds safer for vulnerable communities surrounding them? >> it begins with trying to prevent a catastrophic failure. as we know, the incident occurred and destroyed a community caused $1.3 billion of damage. it contains a rigorous set of requirements to print -- prevent those things.

regular inspections, structural evaluations, and based on the evaluations, facilities will either have to enhance the structural stability or they would have to close the facility. when it comes to groundwater, it means putting in place a comprehensive program of groundwater monitoring. making sure it exceeds protective standards. moving forward on cleaning up the groundwater, and the situations where empowerment exceeds groundwater, they would have to close. the other issues dust. many rules about coal ash dust would put in a comprehensive program to control coal ash dust . >> the epa, when you make this rule, how do you come about it,

so many people, in my opinion elected or not, think that anytime you have regulations, a are trying to hurt business. what kind of effort goes into making sure you strike a balance in understanding what is going on in the real world and what should happen to create public safety requirements that should we have standards in the united states of america? >> i begin with glistening and evaluating. with everyone. clearly, communities impacted. we have to have an implementable rule. so we looked at the pragmatic issues of, how can it be in bloom in a realistic way that conserves? we think it is a protective role, and a rule that is pragmatic and considers underground construction issues. >> so, you are not just going into this blindly without understanding and appreciating what is going on in the real world and the day-to-day effects

of the industry? >> it is very much data-driven. >> commerce is something that is taken into account? the effects of commerce when these decisions and-or these processes are discussed? >> yes. we want to make sure, again, the challenge of closure and the relative size of that, and also kind of avoiding the billion-dollar consequence of these catastrophic failures. all of that goes into our consideration. >> are there more examples outside of the u.s. with catastrophic incidences? as far as your data shows? >> i was basing this purely on u.s. information. i do not know the answer to that. >> i would like to recommend, i do not think -- since the world is getting smaller with all this international commerce i think it is important for us to understand, as americans, how

having regulations you're the do not happen in other parts of the world, how people are affected when they do not have that. as americans, we are kind of spoiled by what we do not see it -- and regulations that protect us. i would like to correct myself mr. chairman. >> we want to thank you for coming. great work. we will listen to the second panel. i would expect that we would try to look at some of these tweets that you heard about today. we with the smiths you -- we will dismiss you and in panel

the second panel. as our second panel was being seated -- i have done this numerous times. i think i will do the introduction of introduction before they give the five-minute opening statement. our panelists know that their full statement is submitted for the record. we don't know when the votes are. we will not be mean about the five minutes but you with -- we would like you to adhere to that as best as possible. first, mr. thomas easterly. we're happy to have you here and you are recognized for five minutes. >> good morning.

i'm the commissioner of the indiana department of environmental management. i bring you greetings from governor pence of indiana. we appreciate the opportunity to share indiana's fuels - -views. eco has worked on the ccr issue for many years. this has been reaffirmed as recently as 2013. while the epa's final rule response to some of the concerns other long-term state concerns remain addressed. as initial point i express agreement with the epa's finding that: -- is not a hazardous waste. it can be safely and beneficially used. epa's regulation is --

the structural engineering failures devastate people's lives. destroy property and contaminate natural resources. the epa's self implement general contains robust national structural integrity-provisions which should result in a meaningful reduction in ccr failures in the future. the rule also creates a consistent national set of requirements, many of which are in place in various states to prevent adverse environmental impacts to our water and air. units unable to meet the new criteria will have to close, so they will be solving the problem. most important is that the epa's final rule explicitly mechanize is the rules that agencies have and should continue to maintain

in overseeing ccr. however, a finalized rule that can only be enforced through citizens sue provisions, the role state regulators oversight and enforcement will be significantly marginalized. the pa envisions that the key state role in the program will be maintained by states amending the solid waste management plans to the requirements. epa expects that the amended plans will receive deference by the courts and citizens. while the requirement's are suffolk of it in, the schedules would require states to achieve final solid waste management plan amendments with epa approval on a schedule which cannot be met by many states including indiana. an owner to ensure transparency come indiana's laws require my agency item to have for public notices with associated comments for new regulatory action. this public process takes 18 months yet some of these self implementing deadlines are a

short of six months, making it impossible for indiana to have regulations in place to implement those portions of the rule. after the state plan is amended and approved by epa, the new ccr rules will remained independently enforceable. epa does not have the legal authority under record subtitle d to regulate the rules to the states. i would like to address the need for legislative amendment on the ccr issues. -- 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. legislation would be beneficial in several ways to achieving this goal. first, legislation could codify

the epa's determination that coal ash is not hazardous and get the going back and forth concern done forever. state programs cannot operate in place of the federal program without legislation. third, legislation can add certainty to the process of the epa improving solid waste plans i making clear that the criteria the epa would apply meets the 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 josh today and i'm happy to answer any questions. >> you are representing the environment the council of the states and they have been very helpful on the process. now, we recognized for five minutes, mr. michael forbeck.

quick sign president of the association of state territorial and solid waste officials and i'm here on behalf to testify. the association representing the waste management remediation programs the 50 states, five territories in the district of columbia. our membership includes state program experts with individual responsibility and management of solid hazardous waste. thank you for the opportunity to provide testimony on coal residuals and facilities. we were very pleased to see and are in full agreement in the final rule d of the resource

conservation recovery act. on the issue of dual state and federal regulatory authority, we see as a result of the final rule self implement and construct. we are not offering testimony on technical components of the role with groups looking at these and beneficial use components and be will have additional input at later time. the epa has issued the rule under sub title d part 257. the records of statutory basis for part 258 governing miscible solid waste lands includes developments for a permit program to incorporate the federal criteria and for the epa to determine whether those are adequate within the confines of the criteria. -- comments to the epa regarding the proposed rules we pointed out that self implementing standard will set up a dual state and federal regulatory regime for owners and operators

that would be problematic for the effective limitation of the ccr facilities. -- recommended that a final rule includes explicit language that the epa views compliance of the state program that meets or exceeds the federal minimum criteria as compliance with that federal criteria. we appreciate epa during our concerns about dual state and federal regulatory authority and efforts working within the bounds of their statutory authority to provide a mechanism through the state solid waste management plans to address our concerns. however, we see difficulties with the program. one is timing. in order for states to adopt these minimum standards by adopting their management planes thereby holding dual regulatory authority in theory, the process would have to be finished in six months from the date publication to the final rule in the register. this is insufficient time since a lengthy public participation process involved in the

submission plans could preclude a timely approval. even if it went smoothly. there was still be dual state and federal implementation for time. past six months. salt waste management plans -- solid waste management plans fall short of full implication and even after passage and a limitation epa approval of the solid waste management plan does not mean that the program operates in blue of the federal program. distant not fully alleviate dual in temptation of state and federal standards. the epa states that the facility that operates would be able to beneficially use that fact in the citizen suit brought to force the federal criteria. this is objective and speculative. citizen suits final in different jurisdictions can result in individual courts interpreting the plan and rule differently. thus surrendering a different decision that leads to

inconsistent implementation. there is concerned that more sections of the solid waste management plan and the reopening of the plant would be reviewed by epa and potentially require additional revisions to the state lands. -- believes that legislation such as hr 2218 as was passed by the house and 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 clear and consistent understanding of the permitting and enforcement roles of the state. state permit programs, the ccr would have the additional benefit of allowing flex ability for states to have regionally-appropriate state standards. we appreciate the epa's decision to regulate ccr's under subtitle d and providing a mechanism within the confines of part 257 for implantation of the role by the states. however, the revision for the

solid waste management plan does not fully eliminate dual and limitation of ccr revelatory programs. -- looks forward to working closely with the epa and congress regarding the ccr rule implementation. thank you for the opportunity to provide this testimony and i will be here for questions. >> would like to recognize ms. lisa johnson, chief executive officer and general manager of seminal electric cooperative -- seminole electric cooperative. >> thank you, my name is lisa johnson. i am the ceo general manager of seminole electric cooperative. we provide safe, competitively priced electricity to one

million consumers and businesses in florida counties. on behalf of seminole, i would like to thank you for taking the time as i present on this issue. we support me mental protections agency's decision to designate ccr's as nonhazardous. the epa's approach supported by data from its own investigation balances the need to protect a look the environment without creating an undue burden on affected phyllis szilagyi's. even with the nonhazardous final rule, we are seeking your support to provide additional legislative certainty. seminole owns a 1300 megawatt power plant employing 300 hard-working syrians. we have $535 million environmental control equipment.

seminal generates approximately 800 house and tons of ccr's per year. however, we recycled roughly 550,000 tons per year of our ccr 's to produce waffle board, cement, and concrete blocks. one ccr material is converted into synthetic gypsum and sold to continental building products. continental is a facility specifically constructed to utilize the synthetic gypsum. since 2000, more than 7 million tons of this ccr material has been converted into wallboard. wallboard used to build homes and businesses throughout florida and the country. seminole recycles all of the facilities bottom ash to manufacture cement and stronger, lighter concrete blocks. if not used beneficially, these byproducts would have been using landfall. in 2009, seminole received a

sustainable leadership award for our beneficial reuse of ccr's and sgs was named one of the top power plants in the world for our kabul schmitz. one of the most important goals is to operate our power plant in a safe environmentally responsible manner and in full compliance with all permits issued by the florida department of environment protection and the epa. bringing us to one of our concerns with the new rule. of the epa will regulate ccr as nonhazardous, the rule is self implement in which means the sunnis covered by the role must comply with the federal role regardless of adoption by the state. for example, should florida adopt the epa's final rule, the federal rule remains in place, creating dueling revelatory regimes. as a self implement and final rule, the typical method for state or citizen group to check compliance at a facility that may or may not be adhering to the rule is to final suit against a facility. this could result in frivolous

and costly legal disputes and federal district courts where the resulting interpretations and penalties could vary significantly. for not for profit electric cooperatives, this is especially cooperatives as any costs incurred must be passed onto to the consumer owners at the end of the line. we ask that you eliminate the double jeopardy aspect of the role of the state fully adopts the final rule. the next major concern we have is the complete lack of certainty that ccr's will continue to be regulated as nonhazardous. for seminole, this is an extremely problematic as a major part of our design is based on recycling system practices. should the epa decide to regulate ccr as hazardous seminole would be forced to dispose of the ccr come at turning a beneficial product into a landfill stream. on numerous occasions, the epa

has determined that ccr's are not hazardous and there are no new findings to justify a in determination. we ask that you and the continuous reevaluation process and confirmed that ccr's are and continue to be regulated as nonhazardous. we are seeking regulatory certainty so we can continue to provide safe, reliable, and affordable electricity while fully complying with all applicable rules regulations and laws. on behalf of seminole, i thank you for the opportunity to meet with us today and share our thoughts on this very important rule. >> i would like to turn to mr. thomas adams, executive director of the american coal ash association. i would like to thank you for the opportunity to come to speak to you in 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 to advance the beneficial use of coal combustion products in ways that are environmentally responsible, competitive technically sound, and supportive of a global committee. we are not a large trade association, we are based in farmington hills, michigan. we rely on volunteer members to accomplish our work which is mostly technical. all we have some of the largest utilities in the country as numbers, most of our businesses are small numbers comprised of businesses who devoted their entire careers to the cause of beneficial use and improving our environment. it was these small businesses that were hurt the most by the editorial uncertainty that suggested the possibility of hazardous waste designation for coal ash. there many uses it of a resource

rather than waste. it conserves natural resources saves energy, and significantly reduces greenhouse gas omissions by replacing products manufactured. the american road and transportation builders association determined that the use of coal ash in concrete roads and bridges saves department of transportation across the country over $5 billion per year. it is important to remember in this conversation that coal ash has never qualified as hazardous waste space on its toxicity. it does contain trace amount of metals and those are found in similar levels in soils and hundreds of household items. a study released in 2012 analyzed data from the u.s. geological survey which sold -- which showed the concentrations are below environmental screening levels for residential soils and are similar to concentrations found in common third. despite a drumbeat of the city coal ash is no more toxic than

the manufactured materials it replaces. unfortunately, this discussion has had real world negative consequences for the real-world use of coal ash. when epa began discussing a hazardous waste designation the agency cast a cloud over beneficial use which caused coal ash produces across the nation to decrease beneficial coal ash uses. use has declined every year since that year. it stands in stark contrast to the previous decades trend when in 2000 the recycling time was 32 million tons. at the time of the epa issued its final regulatory determination that the regulation of hazardous waste was not warranted. over the next eight years, coal ash beneficial use skyrocketed to 60.6 million tons and almost a 100% increase. according to the most recently

released data from 2013, 51.4 million tons were beneficially used, down from 51.9 in 2012 and well below the 2000 eight peak. the great irony of this debate over coal ash disposal regulation is that they cause 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 and impoundments. we believe this decision puts science and 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 also painfully aware that the epa has made final decisions before only to reverse course in the future. hazardous versus nonhazardous debate occurred prior to the 2000 final determination which eight years later turned out to be not so final. additionally, the final rules bramble states that the rule of

the first final double revelatory determination with respect to ccr that is disposed in landfills and ccr surface and comments until additional information is available in a number of key policy questions. apparently, 34 years of study, two reports to congress, to formal revelatory terminations and a final rule issued after a six-year rulemaking process might not be enough for the epa to make a final determination. those previously passed by the house would resolve these issues promptly and the bills would put authority in the hands of state in terminal regulators and the ability for the epa to step in of states don't do the job. we would like to thank you for this committee's diligence addressing this issue, we believe it is important to keep beneficial use at the forefront of u.s. coal management policy. the best solution is not to dispose. >> thank you very much. the chair now recognizes the

chairman of the waste into his group on behalf of the edison waste utilities is a too. >> i am jim rower, the executive director of the utility solid waste activities group. we support epa's decision to regulate coal ash as a nonhazardous waste, decision which is consistent with the rulemaking record and with epa's previous regulatory determinations that coal ash does not want regulation as hazardous waste. epa should develop revelatory program for coal ash patterned after the federal regulations in place for miscible solid waste landfills which would include design standards, location restrictions, dust controls, ground monitoring and corrective action as well as structural stability controls. however, while we support epa's regulation as a nonhazardous

waste, there are serious flaws in the new rule due to statutory limitations. the program generally doesn't authorize a limitation of federal rules through state permit programs nor does it allow the epa enforcement of those rules. the only exception other provisions under which the epa issued solid waste landfill rules which are enforceable with backup epa authority. they used that authority in issuing this rule but the epa determined if cannot. we are left with a rule that cannot be delegated to states in which the epa has nor enforcement role. it is self implement and relegated and the facilities must comply irrespective if it is adopted by the state. the federal rule remains in place with the independent set of criteria. the epa's koran this point. the state program cannot operate in lieu of a federal program. this will result in dual the

potentially inconsistent federal estate requirements. most troubling, we are hearing that some states not not even attempt to -- the new rule. we believe this is the only federal environmental law that is implemented and enforced in that. this means legal disputes regarding compliance with any aspect with the rule determined on a case-by-case basis. that all judges will be making complex decisions about federal revelatory compliance. this is likely to different decisions in terms of the scope and applicability of the rules. this is not a sound strategy for implement a complex federal environment program that has set

significant implications for the power generation industry. the customer list self implementing, the epa dropped risk-based options and for conducting cleanups, this requires revelatory oversight. as a result, the federal rule overrides existing states programs that have been proven protective. some of our members are in the middle of them committing a long-term closure or cleanup for coal ash facilities. we are concerned that the lack of recognition for state-based cleanup programs may effectively negated these efforts. the rule impacts -- we fully appreciate such that such inactive sites may pose risks and steps should be taken to adjust those. we don't believe epa has the authority to subject past disposal practices for active units as the agency is done in this rule. congress has authorized epa to address risk from past disposal

under superfund and issuing site specific remedial orders. if the epa wants additional authority, we believe the statute must be amended to grant epa such authority. finally, the rule does not provide a desired certainty that coal ash will not be regulated as a hazardous waste. epa makes clear that it will at some point issue a new regulatory determination regarding whether coal ash once coal ash regulation. the agency leaves the door open to revise the rules and regular in coal ash as a hazardous waste. copies across the country will be investing huge resources to come into compliance with the new rule, even as the epa contemplates a whole new revelatory program. we need regular tory certainty regarding the status of coal ash. i would like to thank the subcommittee for the opportunity to submit these views and would

be happy to answer these questions. >> the chair recognizes mr. shafer. >> thank you for the opportunity to testify, i'm eric schaeffer director of the environmental integrity project. we have worked with citizens who live and work around coal ash sites. i would like to speak to what certainty might mean to those people. some of whom have been living with this problem for very long time. i really don't think folks in the securities whether you call it hazardous or what you call it peanut butter. they want the coal ash out of their groundwater, they don't want it in their lungs, and they would rather not have 39 million tons of it dumped in the river as duke energy did to the good

people of north carolina less than a year ago. we hear that those kind of problems are things of the past they are not going to happen again. obviously they did happen. leave the question is whether the epa's rule or anything congress does gives people most affected by coal ash the kind of certainty they are looking for. i want to point out that this issue has been bumped around for about 30 years. in that time, a lot of these disposal sites which are nothing more than holes in the ground have deteriorated because of responding to spills and the results of the contamination from just six companies, now it exceeds $10 billion. that is based on securities and exchange commission disclosures. that number has been a climb whatever happens. 30 years of no regulation, a bill comes with that and that bill is coming due.

touching briefly on the rule we like some parts, we don't like others. not too unusual for an epa outcome. the structural stability requirement's could be helpful and prevent a catastrophic spills we have seen. the monitoring requirements are a bit star, especially if the data is put online and you don't have to put online. i have to say it has big loopholes. boron is one of the most pervasive pollutants. it is important to understand no one is going to get wind burn from complying with the deadlines in the rule, some of which stretch from here to eternity. it is not a fast-paced set of standards. i encourage you to look at these deadlines. i would respectfully ask you