Issue. I commend the epa for working on this rule. Do you have a conference that this final rule is protective of health and the environment, are there gaps in the protections under this rule that would need to be filled by legislation . I believe the rule is very strong and very protective. And in terms of any gaps we dont believe there are any gaps. We believe all the risks are put in place. All the rigorous technical information. What about beneficial reuse . Will this rule restrict beneficial reuse in anyway to stigmatize coal ash . We dont believe it will. The real clarity is not subject to the rule. But still i expect were going to hear from the second panel that legislation is needed to remove epas authority to regulate cole ash under subtitle c in the future. What factors might lead epa to some day regulate coal ash under subtitle c. To be clear we had proposed an approach under d and c. We made a decision under d the seat proposal is no longer on the table. Like any other rule in the future, we it would go through the same rule, Public Notice in common for consideration, however, i would note that we have a strong confidence that between the National Criteria strong National Criteria and the utilization program, and epas approval of that, we believe moving forward that we will have the protections that are necessary to protect communities. And we are moving forward, working with the states and implementation. I think its safe to say that coal ash does not become more toxic, and implementation of the title is effective. If it does turn out ash is more toxic, the state u tailties are not doing enough to protect human health, if that turned out to be the case would it be important for epa to be able to pursue subtitle y regulation in your opinion . Our focus right now you know, we have reflected data from all stakeholders, we believe we put in place a rigorous rule to offer the protection of the communities around the country. So we are moving forward in implementation, working with states working with public stakeholders, with the utility to provide the protection. Were not looking at further rule making at this moment. I understand that im just saying, because those who advocate you shouldnt be able to pursue subtitle c regulation or to eliminate that option if it turns out that the ash is becoming more toxic, and that the states and utilities arent doing enough under subtitle d, do you think it would be important for epa to continue to be able to pursue subtitle c regulation . We look at implementation of this rule, and see what issues are addressed in the future. So you dont want to comment or the possibility of pursuing the subtitle c regulation . Not at the moment. Not at this time . Thank you so much. I yield back, mr. Chairman. Gentleman yields back his team. I think well recess now and come back immediately after the vote. There should be two votes, you have time to stretch and get a cup of coffee. But most of us will come back promptly after the second vote. This hearing is now recessed. I want to call the hearing back to order. The next order of business is recognizing the gentleman from West Virginia for five minutes, for his round of questions. Thank you, mr. Chairman. Thank you again for your as i said in my opening remarks i appreciate the working relationship weve had. Just a couple questions, three or four quick questions, two of which mr. Stanislav may be yes or no. The first one is do you personally think that cole ash is a Hazardous Material . Well, weve identified the various risks of coal ash mismanagement and put in place a number of requirements to be protected against those risks. And weve identified the various constituents in coal ash and the ways that we should establish, for example, Groundwater Program to be protected. Which is in and of itself imma teerl. Whether its concrete drywall. Let me go from there, with the past with the legislation we passed over the last two congresses, and the 12th and 1300 would that have created certainty within the recyclers and the Utility Industry . Well you know you dont think it would . Well what i can say is with respect to the rule we think it provides the kind of certainty. Im not talking about the rule, im talking about the bill we had. Right. What were my remarks again are all about certainty. I come from the business world, we need to have certainty. I was trying that legislation was trying to get that, unfortunately, i believe i know it was a reasonable effort it doesnt create certainty. The proposed rule provides that no provides us no assurance coal ash will not be regulated as a Hazardous Waste in the future. Could you explain the agencys justification for leaving that door open and almost deliberately causing uncertainty on this issue . Can you explain why they kept the door open instead of closing it . So that we could advance . Yeah i think that we provide a tremendous certainty in the final rule in beneficial use i think we make very clear that beneficial use is not subject to the rule, the existing protections that continue to remain. We think that coupled with other acts that were taken will foster not only the stabilization, but increased use of beneficial use. How do you deal with it, that on page 18 it says this rule defers, postpones a final determination until Additional Information is available. I just wonder how that the doors wide open. Because sometimes someone is going to make another determination that could be based on other information. Im not i dont agree with you i think its well intended. It helps resolve differences between c d. But it doesnt give us a view of tomorrow. Were moving the ball down the field, how do we shut the door. I actually, in my opinion, i dont think we left the door wide open. Were very clear, as between the two proposals that we had put for public comment, one is a c approach and a d approach. We went with the d approach. The language as youre referring to then goes on to say that we didnt have full and complete information in a couple areas. One big area was our states would move forward we believe very strongly that the against of a clear consistent federal set of criteria coupled with the Planning Program and epas approval of that, will provide comfort and certainty with respect to those issues. We actually dont think that the door is open. I guess like you said earlier, were just going to have to agree to disagree on that, because i think its clear from business when you have that language that something can happen in the future the next administration can commit with a different attitude than you personally have had, it makes it uncertain. We need to just close that lets continue working together on that and see if we cant close that door on that. Yield back the balance. I reaffirm my and the epas commitment to continue to work with you and this committee on technical assistance, we also make clear on the preamble we would not do anything without any we think weve done a good job and provided protections. Any future changes like any rule is going to be subject to future process, it would have to require another proposal. Gentleman from pennsylvania, mr. Doyle is recognized for five minutes. Thank you, mr. Chairman. I want to thank you for convening this final hears many of my con sit u ants were concerned on the coal ash disposal, because of concerns it may limit beneficial use on one hand or protect the federal health on the other. Epa has protected beneficial reuse, and put in criteria that will ensure safe disposal. I would like to ask you a few questions. The final rule prevents or restricts does epas new final rule restrict use of coal in anyway . No, beneficial use is fully protected and not subject to the rule. Coal ash thats beneficially reused wont be subject to the rules . Thats correct. And in fact according to the final rule, 52 million tons of coal ash are beneficially reuses annually, can you tell us about some of the environmental ben firsts of recycling coal ash instead of sending it to a landfill . Sure, i mean saved energy costs. Reducing Greenhouse Gases, and reducing impacts to the environment, as well as tremendous economic benefits. Replacing virgin material with coal ash. Im going to move on to what weve been hearing a lot of discussion about. Youre going to hear a lot about the selfimplementing requirement for this rule i wanted to give you the opportunity. And i know you talked a little bit about it already on this concern that were creating a dual Regulatory Regime, potentially requiring owners and operators to adhere to the two set of standards. What does it mean when the epa will approve the state plans, and you say that theyll be approved as long as they demonstrate federal compliance. What does that mean . Can you what does that terminology mean . Sure, what states would have to do is to integrate the criteria into the state program. Any state plan that epa would approve would have within its plan the federal requirements, so theres no way the state would be out of compliance if youve approved their plan. That will be at the very minimum what the plan has to adopt, and they can do something over and above that . Thats right. The utility compliance perspective, once that approval happens, the states would have to comply with a single set of information. Have comfort that the epas approved. And made very clear, if the utility follows a state program, that is subject to epas approval, epa will deem that with the federal compliance criteria. If a state is off the plan. Theres no way they can be in compliance with the federal statute. They could be in compliance with the state one, has extra provisions . That is correct. You feel that addresses that concern about the regulation . We do. Thats all the questions i have, mr. Chairman, thanks. The chair now recognizes mr. Kramer for five minutes. Thank you, mr. Chairman, thank you. For being here and for your good work. I have one area im going to continue on this line of exploring a little bit on the selfimplementing piece. I spent a number of years on the north Dakota Public Service commission, carriryied the coal reclamation portfolio, the one thing that i heard a lot especially in whatever the case might have been. But whenever we were challenged in court we were plenty of times, and we always prevailed as a commission, not because lawyers were superior or anything like that although we have good lawyers, dont get me wrong, but because the courts in highly technical matters just always deferred to the experts, the Administrative Agency this selfimplementing thing makes me a little nervous and if it makes me a little nervous as a former regulator, i can only imagine how nervous it makes the industry. It seems to me we can tighten it up, and provide the certainty everybody is talking about, without comprising in anyway really the protections that were trying to accomplish, and in fact, i think should be to the benefit of everybody on all sides. Am i wrong there . Or is there a better reason to do it this way . I dont disagree with the overall views that will provide substantial way to the technical judgment of states and federal government. Precisely for the reason that you raise is the reason why were tieing these minimum federal requirements to an epa rule of a state program we believe very strongly, that the courts will look at that and provide substantial weight of that technical judgment of the combination of the states and epa. I understand all that, and i think thats noble. Cant we just go to the next step and tie it down so that were not relying on selfimplementation and then the discretion of multiple jurisdictions and multiple courts when we have the experts in what seems to be pretty relative agreement for this place, and then i think you get a lot of support. Thats really all i have. And i again, appreciate the hard work. The chairman recognizes the gentleman from california for five minutes. Thank you, mr. Chairman. How many tons of coal ash are produced in a year in this country. Any idea how much what fraction of that is used in beneficial ways . Not off the top of my head. I can get back to you on the actual numbers. Is there an opportunity for beneficial use of coal ash . Absolutely. How would that happen . What would it take for more beneficial uses to come about . I think probably tom adams is a better witness to ask that. I think clearly when weve discussed with the reuse manufacturers providing the certainty that i think we provide, it will be a first step into two expanding the beneficial use of coal ash. So thats a part of the rule thats been promulgated . Thats right. Okay. Im a little concerned about citizen lawsuits with regard to the rule or the potential relation that might come out of this issue how quickly do you think we will see improvements in the safety of the coal ash disposal sites as a result of the rule thats been promulgated. Immediately. The rule takes effect in six months from publication. Theres an early obligation like making sure you have a dust control plan in place. Make sure you begin the inspections. I think youll see some early improvement. A lot of these are things that are already done by the leading utilities anyway. I think it gives you more of a standardization around the country. And then as time progresses, roughly about 18 months some of the more structural issues will be addressed, those things that potentially contaminated groundwater, potentially have an impact on structural stability would be addressed. You expect the robust transparency provisions to incentivize compliance . Absolutely. All the studies show that the more disclosure of data and compliance in a very deep and granular way its an incentive, and it enables citizens adjacent to these facilities and states to monitor compliance. Do you think the citizens and states are going to buy the disclosures that the agencies are going to be putting on their websites . Do you think the people are going to buy it . Or do you think theyre going to revert to lawsuits to satisfy their concerns . Well i think that one of the reasons that we put in this Public Disclosure was, to respond to citizens requests of having detailed information, for example a groundwater data and how the groundwater data compares with whatever it is or is not exceeding protected standards. I do think that is going to add substantial value to compliance and oversight by citizens. Theres enough teeth then in your opinion in the compliance requirements that people will take satisfaction that theyre doing what theyre saying . We do. We do. The last question, is there a concern that if a committee passed the bill that was signed into law, it would stifle the beneficial use of coal ash or the safe disposal of coal ash . You think passing a law would stifle whats going to take place as a result of the rule . Well i really cannot answer that question today in a vacuum will what i can say is that we strongly believe the rule provides a protection as well as a certainty protection of the community is next to the empowerments. You know i really cant provide an opinion as to what the effect of legislation would be regarding this moment. I yield back, mr. Chairman. The chairman yields back before i yield back to mr. Florez, i want to ask consent that the letter of the u. S. Green Building Council be submitted for the record. Is there an option . Hearing none so ordered. Id like to recognize congressman florez for texas for five minutes. Thank you, mr. Chairman. Thank you for joining us today. I want to give you a quote and answer to the question of having multiple opinions of the judges. We dont anticipate any issues with that in that regard. Well take it from a real world perspective, any time that you dont have the right type of rule making that you will have that instability, if you will in the real world in terms of the enforcement process, not only could you have it among the states, you could have it in a state. You have multiple district judges that will make their technical opinions. I urge you to keep that under consideration as you move forward. This gets sent to the law, if you will and that is in terms of legacy sites. Walk us through how the epa believes that it has the authority to regulate legacy sites, and in particular, i need the specific reference to ricra, if thats what youre relying upon to make the rules. Clearly inactive sites at an active power plan the and active units at an inactive power plant has these same issues, coal ash, water, under those proposed commissions, impose the identical risk of structural failure and impact and communities leeching into groundwater, we believe because of those circumstance that ricra provides us the ability to authority and mandate that kind of protection identical units but for is not actively being used for disposal of coal ash. Lets take that to the next step when youre talking about those particular impoundments when you propose the application of location restrictions to existing surface impoundments, the epa acknowledged that these limitations would force the majority of these the current impoundments to close. You have an estimate of how many will close and moving further upstream from those closures, what sort of reliability does that reliability issues could be imposed on our grid. Well, i dont have that i can get you that information. I can get you that information. Just to be clear. You know the final rule provides location requirements. It does not begin with closure. It begins with examining all these location criteria proximity to wetlands, prom imty to groundwater aquifers. Then they will have to determine can they put in Engineering Solutions to provide those kind of protections. They would not automatically trigger closure. I can get you that data. I think that would be important, because i think in your rule you acknowledge that it will cause the majority of these to close, and i think that creates an issue in terms of reliability. Im not sure if thats correct. Ill check that and get back to you. To the extent that an operator grants itself an extension. What do you think the impact will be in terms of citizen lawsuits and the instability lets just say the instability or the lack of clarity that that causes for our an operator. Well, because weve gone out we visited numerous coal ash plants around the country, we reviewed information from utilities about the different dimensions. Some are going to be more challenging to close than others. We do put in place in a very specific way those circumstances where they can provide enable themselves extensions. We think the rule itself provides that ability to extend whether circumstance justifies that, that will be coupled with obviously the utility disclosing the circumstance. But once you follow that, they will not be a violation of th