UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

 OFFICE OF RESOURCE CONSERVATION AND RECOVERY

OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE

 PUBLIC HEARING ON EPA'S PROPOSED RULE ON

 Hazardous and Solid Waste Management System;

Identification and Listing of Special Wastes;

 Disposal of Coal Combustion Residuals from

 Electric Utilities

 Denver, Colorado

 Thursday, September 2, 2010, 2010
 2

 1 PARTICIPANTS:

 2 EPA Hearing Panel:

 3 Morning/Evening Session:

 4 ROBERT DELLINGER, Chair

 Director of Materials Recovery and Waste

 5 Management

 Office of Resource Conservation and Recovery

 6

 LAURA CELESTE

 7 EPA Office of General Counsel

 8 KENDRA MORRISON

 EPA Denver Regional Office

 9

 ALEXANDER LIVNAT

 10 Office of Resource Conservation and Recovery

 11 Afternoon Session:

 12 BETSY DEVLIN, Chair

 Associate Director of Materials Recovery and Waste

 13 Management

 Office of Resource Conservation and Recovery

 14

 LAURA CELESTE

 15 EPA Office of General Counsel

 16 STEVE HOFFMAN

 17 JESSE MILLER

 18

 19

 20 * * * * *

 21

 22
 3

 1 P R O C E E D I N G S

 2 (9:00 a.m.)

 3 MR. DELLINGER: We're ready to start the

 4 hearing now. Good morning and thank you for

 5 attending today's public hearing on the

 6 Environmental Protection Agency's proposed rule

 7 regarding the regulation of coal combustion

 8 residuals that are disposed of in landfills and

 9 surface impoundments.

 10 Before we began, I'd like to thank you

 11 for taking time out of your busy schedules to our

 12 proposed rule, and we look forward to receiving

 13 your comments.

 14 This is the second of seven public

 15 hearings that we will be conducting. We had a

 16 very successful hearing in Washington, DC, on

 17 Monday of this week. The remaining hearings after

 18 this one will be in Dallas, Charlotte, Chicago,

 19 Pittsburgh, and Louisville.

 20 My name is Bob Dellinger. I am the

 21 Director of Materials Recovery and Waste

 22 Management Division in EPA's Office of Resource
 4

 1 Conservation and Recovery. I'll be chairing this

 2 session of today's public hearing.

 3 With me on the panel are Laura Celeste

 4 from our Office of General Counsel, Kendra

 5 Morrison from our Denver regional office, and

 6 Alexander Livnat, who works with me in the Office

 7 of Resource Conservation and Recovery.

 8 Before we begin the public hearing, I

 9 would like to provide you a brief description of

 10 the proposed rule on which we're taking comments

 11 today, as well as the logistics on how we plan to

 12 run today's public hearing.

 13 Coal combustion residuals, or CCRs, are

 14 residues from the combustion of coal at electric

 15 utilities and include fly ash, bottom ash, boiler

 16 slag and flue gas desulfurization materials. Coal

 17 combustion residuals contain contaminants such as

 18 mercury, cadmium, selenium, and arsenic at various

 19 levels.

 20 In 2008, 136 million tons of coal

 21 combustion residuals were generated by electric

 22 utilities and independent power producers, and of
 5

 1 that total, approximately 46 million tons were

 2 landfilled, 30 million tons were disposed in

 3 surface impoundments, 50 million tons were

 4 beneficially used, and 11 million tons were used

 5 in mine fill operations.

 6 That adds up to 137 due to round-off

 7 error. So I just want to make sure that people

 8 know I can add. In this instance, the numbers

 9 were there.

 10 The agency estimates that there are

 11 approximately 300 landfills and more than 600

 12 surface impoundments where coal combustion

 13 residuals are disposed.

 14 EPA has proposed to regulate these coal

 15 combustion residuals to ensure their safe

 16 management when they are disposed in landfills and

 17 surface impoundments. Without proper protections,

 18 the contaminants in these residuals can leach into

 19 groundwater and migrate to drinking water sources,

 20 posing public health concerns.

 21 In addition, the structural failure of a

 22 surface impoundment at the Tennessee Valley
 6

 1 Authority's plant in Kingston, Tennessee, in

 2 December of 2008 released more than 5 million

 3 cubic yards of coal ash over approximately 300

 4 acres of land and contaminated portions of the

 5 Emory and Clinch Rivers.

 6 With this proposal, EPA has opened a

 7 national dialogue by calling for public comment on

 8 two different regulatory approaches available

 9 under the Resource Conservation and Recovery Act

 10 for addressing the risks from the disposal of

 11 CCRs.

 12 One option presented in the proposed

 13 rule draws from the authorities available under

 14 Subtitle C of RCRA. This would create a

 15 comprehensive program of federally enforceable

 16 requirements for waste that's being managed in

 17 surface impoundments and landfills.

 18 The other option is based on the

 19 authorities of Subtitle D of RCRA, which gives EPA

 20 the authority to set minimum national criteria for

 21 waste management facilities that would be enforced

 22 through citizen suits, and under this scenario,
 7

 1 states would qualify as citizens.

 2 EPA decided to co-propose these two rule

 3 options to encourage a robust dialogue on how to

 4 address the human health concerns and structural

 5 integrity issues associated with the disposal of

 6 coal combustion residuals in landfills and surface

 7 impoundments.

 8 EPA wants to ensure that our ultimate

 9 decision is based on the best available data and

 10 is made with the substantial input of all

 11 stakeholders. Therefore, we ask that you provide

 12 us your comments not only at today's hearing but

 13 any other comments and supporting information that

 14 you want to provide in writing.

 15 I'd like to say a few words about the

 16 beneficial use of coal combustion residuals. The

 17 proposed rule maintains the Bevill exemption for

 18 coal combustion residuals that are beneficially

 19 used and, therefore, would not alter the

 20 regulatory status of these residuals when used in

 21 this manner.

 22 EPA continues to strongly support the
 8

 1 safe and protective beneficial use of CCRs.

 2 However, the proposal also indicates that concerns

 3 have been raised with the use of CCRs,

 4 particularly when used in an unencapsulated form.

 5 Therefore, we request comments,

 6 information, and data on specific aspects of

 7 beneficial use, particularly those activities that

 8 deal with unencapsulated applications. We also

 9 make clear in the proposal that coal combustion

 10 residuals that are placed in sand and gravel pits,

 11 quarries, or other large-scale fill operations are

 12 not examples of beneficial use. EPA views this

 13 placement as akin to disposal and would regulate

 14 these sites as disposal sites under either of

 15 these regulatory options.

 16 Now I'll cover the logistics for the

 17 comment portion of today's public hearing.

 18 Today's public hearing will work as follows:

 19 Speakers, if you preregistered, you were given a

 20 15-minute time slot when you are scheduled to give

 21 your three minutes of testimony. To guarantee

 22 that slot, we've asked that you sign up 10 minutes
 9

 1 before your 15-minute slot at the registration

 2 desk.

 3 All speakers, those that are

 4 preregistered and walk-ins, were given a number

 5 when you signed in today and this is the order in

 6 which you will speak. I will call speakers to the

 7 front row over here to my right and your left by

 8 number, four at a time. When your number is

 9 called, please move to the -- to the microphone

 10 and state your name and your affiliation.

 11 We may ask you to spell your name for

 12 the court reporter, who is transcribing your

 13 comments for the official record.

 14 Because there are many people who have

 15 signed up to provide testimony today and to be

 16 fair to everybody, testimony is limited to three

 17 minutes. We will be using an electronic

 18 timekeeping system and will also hold up cards to

 19 let you know when your time is getting low.

 20 When we hold up the first card, this

 21 means that you have two minutes left. When we

 22 hold up the second card, you will have one minute
 10

 1 left. When the third card is held up, you have 30

 2 seconds left, and when the red card is held up,

 3 you're out of time and should not continue with

 4 your remarks.

 5 When you have completed speaking, you

 6 can provide any written material to our court

 7 reporter, and the material will be entered into

 8 the record.

 9 We will not be answering questions on

 10 the proposal. However, from time to time any of

 11 us on the hearing panel may ask questions of you

 12 to clarify your testimony.

 13 As I just mentioned, if you have brought

 14 a written copy of the comments you are giving

 15 today, please leave a copy in the box by our court

 16 reporter, and the box is right here to my left on

 17 the floor.

 18 If you're submitting written comments

 19 today and you're not speaking, please put those in

 20 the box by the registration desk. If you have

 21 additional comments after today, please follow the

 22 instructions on the yellow handout and submit
 11

 1 comments by November 19, 2010.

 2 Our goal is to ensure that everyone who

 3 has come today to present testimony is given an

 4 opportunity to provide comment. To the extent

 5 allowable by time constraints, we will do our best

 6 to accommodate speakers that have not

 7 preregistered. Today's hearing was scheduled to

 8 close at 9 p.m., but we will stay later if

 9 necessary.

 10 If, however, time does not allow you to

 11 present your comments orally, we've prepared a

 12 table in the lobby where you can provide a written

 13 statement in lieu of oral testimony. These

 14 written statements will be collected and entered

 15 into a docket for the proposed rule and will be

 16 considered the same as if you presented them

 17 orally.

 18 If you would like to testify but have

 19 not yet registered to do so, please sign up at the

 20 registration table. An agenda will be found in

 21 the packet you received when you signed in. Also

 22 included is some material on the proposal as well
 12

 1 as instructions for submitting comments.

 2 We are likely to take occasional breaks,

 3 but we are prepared to eliminate and shorten the

 4 breaks in order to allow as many people as

 5 possible to provide their oral testimony.

 6 Finally, if you have a cell phone, we'd

 7 appreciate it if you would turn it off or put it

 8 on vibrate. We ask for your patience as we

 9 proceed. We may need to make some minor

 10 adjustments in the day as -- in the schedule as

 11 the day progresses, and thanks again for

 12 participating.

 13 And let's get started. I'm going to be

 14 calling up numbers 1, 2, 3, and 4.

 15 MR. HUFFMAN: Good morning. My name is

 16 Dan Huffman. I'm the vice president of national

 17 resources for the National Ready Mixed Concrete

 18 Association. Thanks to the EPA for conducting

 19 this session today.

 20 Material that is ready mixed concrete

 21 consumes 75 of all portland cement used in this

 22 country. In my organization, NRMCA, we represent
 13

 1 more than 1,500 concrete manufacturing companies

 2 and 50 state-affiliated nonprofit organizations.

 3 Concrete is the most widely used

 4 construction material in the world and is produced

 5 and consumed in every congressional district in

 6 the United States.

 7 As it relates to fly ash, the ready

 8 mixed concrete industry is the largest beneficial

 9 user, and over 55 percent of all ready mixed

 10 concrete contained fly ash, and fly ash is used in

 11 concrete with portland cement to impart the

 12 following benefits to concrete: Increased

 13 durability and service life of structures of all

 14 types; a reduction waste sent to landfills; a

 15 reduction in raw material extracted; a reduction

 16 in energy for production; a reduction in air

 17 emissions, including carbon dioxide; and fly ash

 18 lowers concrete materials costs.

 19 The concrete industry very beneficially

 20 consumed about 15 million tons of fly ash

 21 annually, but it is estimated that we could

 22 consume more than 30 million tons by 2020
 14

 1 resulting in less fly ash going into landfills and

 2 other places of concern and reducing the concrete

 3 industry's carbon footprint by 20 percent.

 4 After examining the EPA's proposed rule,

 5 we've determined a RCRA Subtitle C designation for

 6 CCRs bound for disposal, while remaining -- while

 7 retaining exemptions for beneficial use, such will

 8 lead to the following unintended consequences for

 9 the concrete industry: Number 1, an increase in

 10 production costs and the overall cost of

 11 construction due to increased regulations for

 12 handling fly ash and concrete during production

 13 and construction; number 2, an increase in

 14 potential liability for concrete producers.

 15 Currently, the status of small amounts of fly ash

 16 and waste streams from concrete production and

 17 construction is unclear.

 18 So any proposed rule should explicitly

 19 state that such waste streams from concrete

 20 production are exempt and not subject to such

 21 regulations. There will also be litigation which

 22 will target existing structures built with fly ash
 15

 1 concrete in the past.

 2 Potentially stricter state laws

 3 impacting beneficial use will also result. For

 4 example, a state rule in the state of Maryland

 5 says that any product containing fly ash must be

 6 disposed of in a special facility authorized to

 7 accept fly ash. And many other states will

 8 establish similar laws that will further limit the

 9 beneficial use of fly ash.

 10 Number 4, the beneficial elimination of

 11 all fly ash concrete. A hazardous waste stigma

 12 and fear of liability will result from the

 13 negative ruling that will drive specifying

 14 engineers, architects, and end users to disallow

 15 the use of fly ash concrete. For example, Los

 16 Angeles Unified School District has banned the use

 17 of fly ash until the EPA has finalized its

 18 decision.

 19 MR. LIVNAT: Your time is up. Thank you

 20 very much.

 21 MR. DELLINGER: State your name.

 22 MR. BENNINGHOVEN: Richie Benninghoven.
 16

 1 MR. DELLINGER: You can start.

 2 MR. BENNINGHOVEN: I'm Richie

 3 Benninghoven with USC Technologies. We're a small

 4 business, have eight employees. We backfill

 5 underground limestone quarries with fly ash to

 6 stabilize them so we can reuse the surface for

 7 development or to stabilize city streets.

 8 I'm commenting today on EPA's claim that

 9 placement in sand and gravel pits, quarries, and

 10 large- scale fill is not beneficial but it's

 11 disposal. I respectfully disagree.

 12 Ashes are different and sites are

 13 different. Ashes such as we saw at Kingsington

 14 that just float out in the river, it's not

 15 self-cementing and it's not self-encapsulating.

 16 We use an ash that's self-cementing and

 17 self-encapsulating.

 18 And the cites that EPA has referenced in

 19 the preamble refers to a sand pit in Maryland and

 20 Battlefield Golf Course in Virginia. The sand

 21 pits are high -- high-flow situations. Sand is

 22 very permeable. And same thing at the Battlefield
 17

 1 Golf Course. It was placed over sandy soils,

 2 again, a high-flow potential situation.

 3 Our limestone mine is completely

 4 opposite. It's very low permeability. 10 to the

 5 minus seven, 10 to the minus eight permeability.

 6 Here's a picture of that mine, and even though

 7 it's under the water table, there's no water.

 8 There's no water dripping. There's no water

 9 standing.

 10 And what's the result of our

 11 stabilization? Class A office building

 12 development; $12 million office building, $6

 13 million office building, $14 million office

 14 building. All built over the mine. $50 million

 15 office building, $30 millions worth of retail

 16 development.

 17 A neighborhood home built over the mine.

 18 $24 million worth of condominiums. And currently

 19 under construction 26 million of luxury

 20 apartments. All built over the underground

 21 limestone mine that you couldn't do without the

 22 use of fly ash.
 18

 1 We also have a state highway going over

 2 the mine, an interchange that if the mine wasn't

 3 stabilized, could threaten to collapse, kind of

 4 like what we saw in Minneapolis with the bridge

 5 collapse. We don't want that.

 6 Here's a city street that saw that

 7 collapse. Two foot of subsidence. We went back

 8 and stabilized this so it wouldn't collapse

 9 anymore.

 10 So I feel that there's no -- if there's

 11 no benefit, I beg to defer. And here's a picture

 12 of the ash in the mine, self-cemented,

 13 self-encapsulated, standing at a negative

 14 one-to-one slope. A lot different than what we

 15 saw at Kingsington. Thank you very much.

 16 MR. DELLINGER: Number 3.

 17 MR. WARD: My name is John Ward, and I

 18 am chairman of Citizens for Recycling First, an

 19 organization of more than 1,500 individuals who

 20 believe that the best way to solve coal ash

 21 disposal problems is to quit throwing the coal ash

 22 away.
 19

 1 In announcing the agency's proposed coal

 2 ash disposal rule on May 4, EPA administrator Lisa

 3 Jackson said, "The time has come for common-sense

 4 national protections to ensure the safe disposal

 5 of coal ash." Citizens for Recycling First agrees

 6 with the administrator.

 7 Common sense tells us that utilities

 8 will be reluctant to allow a material classified

 9 as hazardous waste on their own property to be

 10 distributed for recycling at literally thousands

 11 of locations all around the community. Common

 12 sense tells us that architects and engineers who

 13 are sworn to put human health and safety first

 14 will be reluctant to require the use of material

 15 that is classified as hazardous waste in another

 16 location.

 17 Common sense tells us that users of coal

 18 ash will be reluctant to take on the potential

 19 liabilities and additional operational

 20 requirements that may come with using material

 21 that is classified as hazardous waste in another

 22 location.
 20

 1 And finally, common sense tells that

 2 everyday citizens will be greatly alarmed if they

 3 find out that a building material used in their

 4 homes, school, office, and roadways is classified

 5 as a hazardous waste in another location.

 6 It is a fact that coal ash does not

 7 qualify as hazardous waste based on its toxicity,

 8 which is similar to the toxicity of other building

 9 materials that it replaces when it's recycled.

 10 It is also a fact the landfill

 11 engineering standards EPA is proposing are

 12 essentially the same under both the Subtitle C

 13 hazardous and Subtitle D nonhazardous regulatory

 14 options.

 15 Designating coal ash as hazardous when

 16 destined for disposal does not result in a greater

 17 level of protection for the environment. It does

 18 give the federal EPA a clearer path to enforcing

 19 its new engineering standards rather than

 20 delegating enforcement of EPA standards to the

 21 states. But getting that enforcement authority

 22 comes at a terrible price, the possible
 21

 1 destruction of a recycling industry that greatly

 2 benefits our environment.

 3 Common sense says that risking an entire

 4 recycling industry over a regulatory turf battle

 5 is a bad idea, and common sense says that new coal

 6 ash disposal regulations should be enacted under

 7 Subtitle D, and EPA should work to promote safe

 8 and environmentally beneficial recycling as a

 9 preferred alternative to disposal.

 10 Thank you for this opportunity to

 11 comment.

 12 MR. DELLINGER: Number 4, and will

 13 Numbers 5, 6, 7, and 8 proceed to the front of the

 14 room.

 15 MS. WOOLUMS: Good morning. My name is

 16 Cathy Woolums. I'm the senior vice president of

 17 environmental services for MidAmerican Energy

 18 Holdings Company. MidAmerican is a global energy

 19 services provider with almost 6.9 million

 20 customers worldwide.

 21 I'm here today on behalf of PacifiCorp,

 22 one of MidAmerican's business platforms, which
 22

 1 serves over 1.7 million electricity customers in

 2 California, Oregon, Idaho, Utah, Washington, and

 3 Wyoming served by wind, hydro, national gas,

 4 geothermal, and coal resources.

 5 On a personal note, I live within two

 6 miles of a coal plant. I drink the water from the

 7 river right next to an ash pond. PacifiCorp

 8 supports the development of federal regulations

 9 for coal combustion residuals under RCRA Subtitle

 10 D prime, nonhazardous waste.

 11 The development of rules under this

 12 approach will establish a federal floor for all

 13 CCR facilities to meet. At the same time, for the

 14 reasons detailed further in my testimony

 15 PacifiCorp strongly opposes the regulation of CCRs

 16 under the RCRA Subtitle C, hazardous waste

 17 program.

 18 Additionally, state regulatory agencies

 19 support the same conclusion, that CCR does not

 20 warrant hazardous waste regulation. To date every

 21 individual state environmental regulatory agency

 22 that's weighed in on this issue has opposed the
 23

 1 regulation of CCR as hazardous waste.

 2 Further, a number of state utility

 3 commissions and state departments of

 4 transportation are likewise on record in

 5 opposition to a hazardous waste designation. The

 6 state agencies make a compelling case that

 7 Subtitle C regulation is not necessary and CCR

 8 does not merit hazardous waste characterization,

 9 which would only draw state resources away from

 10 more pressing environmental issues.

 11 PacifiCorp's coal combustion byproducts

 12 that are not beneficially reused are disposed of

 13 in on-site landfills and in surface impoundments.

 14 These surface impoundments and landfills are

 15 assessed through an extensive groundwater

 16 monitoring program. PacifiCorp's surface

 17 impoundments routinely inspected and actively

 18 managed to ensure integrity with oversight by the

 19 appropriate state agency.

 20 Our facilities are operated in

 21 accordance with the utility solid waste activity

 22 group industrial action plan for the management of
 24

 1 coal combustion products.

 2 In conclusion, PacifiCorp believes that

 3 EPA should reject a one-size-fits-all approach to

 4 what we believe would be an overly restrictive

 5 regulatory scheme without consideration of

 6 site-specific risks and instead regulate CCR under

 7 RCRA Subtitle D prime.

 8 Though we recognize the sensitivity of

 9 the Kingston situation, we believe the EPA's

 10 proposed Subtitle D regulation goes too far.

 11 Thank you for the opportunity.

 12 MR. SHAW: I'm Tom Shaw with Harsco

 13 Minerals, a Division of Harsco Corporation. We

 14 have operations in Kansas and Missouri, and I am

 15 here today to represent those plants and their

 16 employees.

 17 Since the 1930s we have been a green

 18 recycler of boiler slag producing mainly abrasives

 19 under the Black Beauty trademark and granules for

 20 roofing shingles. The facts demonstrate there is

 21 no reasonable basis for subjecting boiler slag to

 22 regulation under RCRA Subtitle C, not even as a
 25

 1 special waste.

 2 Boiler slag is formed when extremely hot

 3 molten coal ash is quenched with cold water and

 4 the coal ash immediately becomes a vitrified,

 5 amorphous, solid, glassy matrix known as boiler

 6 slag. Because boiler slag is vitrified, it is a

 7 very durable and environmentally stable material

 8 that permanently immobilizes its chemical

 9 constituents into the glassy amorphous structure,

 10 even when broken into small fragments during

 11 abrasive blasting. This is confirmed by x-ray

 12 defraction and TCLP data.

 13 Because it is beneficially reused,

 14 boiler slag is not commonly stored in surface

 15 impoundments. We regularly test our boiler slag,

 16 and it has always passed the TCLP testing and has

 17 never exhibited any hazardous waste

 18 characteristics. Our testing of pre- and

 19 post-blast boiler using the TCLP has confirmed

 20 that the resulting leachate meets drinking water

 21 standards.

 22 The scientific information about boiler
 26

 1 slag and the physical properties have not changed

 2 since we began our operations more than 70 years

 3 ago.

 4 Regulating boiler slag destined for

 5 disposal as special waste under Subtitle C will

 6 unfairly stigmatize beneficial reused boiler that

 7 is already evident by competitor actions. We have

 8 seen no evidence that boiler slag meets any

 9 threshold for regulation under Subtitle C, and

 10 we're not aware of any environmental problems

 11 linked to our products.

 12 As an abrasive, we have a primary

 13 alternative to silica sand, an abrasive that

 14 presents serious worker concerns -- health

 15 concerns. We recognize the need for proper

 16 environmentally sound standards for regulating

 17 that small percentage of boiler slag that is

 18 discarded rather than beneficially reused.

 19 Accordingly, consistent with the amounts

 20 used in nearly 30 states and EPA's two previous

 21 determinations evaluating proper management of

 22 coal combustion byproducts, we support appropriate
 27

 1 and reasonable disposal standards for any waste

 2 boiler slag under Subtitle D of RCRA.

 3 This is important to our employees in

 4 the central United States, and I thank you for

 5 your time.

 6 MR. DELLINGER: Thank you. Is Sue

 7 Dickenson in the room now? Okay. Number 7.

 8 MR. GILBREATH: Good morning. My name

 9 is Chris Gilbreath. I am the water and waste

 10 manager for Tri-State Generation and Transmission,

 11 and I'm testifying today on behalf of Tri-State.

 12 Tri-State is a not-for-profit, wholesale

 13 electric power supply cooperative providing power

 14 to 44 member distribution systems that serve

 15 customers in a 250,000 square mile territory

 16 including New Mexico, Colorado, Nebraska, and

 17 Wyoming.

 18 The mission of Tri-State is to provide

 19 our member services a reliable, cost-based supply

 20 of electricity while maintaining high

 21 environmental standards. Tri-State provide

 22 electricity to members based on a diverse mix of
 28

 1 generation sources including coal, natural gas,

 2 hydroelectric, and wind power.

 3 Tri-State owns and operates generation

 4 plants in four states. These plants generate and

 5 manage coal combustion byproducts in a dry form.

 6 Tri-State's operations include coal ash handling,

 7 storage, and disposal.

 8 Our facilities are heavily regulated by

 9 state and federal agencies, which include CDPHE,

 10 NMED, Wyoming DEQ, Arizona DEQ, Army Corps of

 11 Engineers, and Office of the State Engineer.

 12 Tri-State facilities are routinely inspected and

 13 have been deemed consistently compliant with the

 14 numerous environmental regulations, including dam

 15 safety, aquifer production, groundwater and solid

 16 waste regulations.

 17 In addition, the EPA has recently

 18 inspected our surface impoundments and concurred

 19 that they meet all applicable federal and state

 20 dam safety requirements.

 21 Tri-State approves -- supports the

 22 continued reuse and recycling of coal combustion
 29

 1 byproducts and is a member of EPA's C2P2. Over

 2 the past four years, approximately 37 percent of

 3 the ash generated throughout our plants has been

 4 beneficially reused.

 5 Tri-State is opposed to the Subtitle C

 6 option. We agree with the views of a bipartisan

 7 group of 165 members of Congress, 45 U.S.

 8 senators, virtually all the states, other federal

 9 agencies, municipal and local governments, unions,

 10 state public utility commissions, and many other

 11 third parties which have maintained that

 12 regulating coal combustion byproducts under RCRA's

 13 hazardous waste program is overkill and, in fact,

 14 would be counter-productive because it would

 15 cripple the beneficial-use industry.

 16 Our initial cost analysis indicates that

 17 adoption of the Subtitle C approach under EPA's

 18 proposal would result in initial capital costs of

 19 over $140 million and annual operating costs of

 20 $10 million for Tri-State facilities alone. These

 21 costs must ultimately be passed directly to our

 22 rate payers since Tri-State is a not-for-profit
 30

 1 wholesale power provider that is owned by the

 2 consumers we serve.

 3 It is our position that the monumental

 4 costs associated with regulating ash as a

 5 hazardous waste provides very little, if any,

 6 health protection to human health and the

 7 environment. There is simply no reason to pursue

 8 this approach when the Subtitle D prime option

 9 offers the same degree of protection without the

 10 attendant risks and administrative burdens of

 11 Subtitle C.

 12 We have evaluated the alternatives and

 13 believe that the Subtitle D prime option is the

 14 best path forward. Unlike the C approach, D prime

 15 will establish a robust and environmentally

 16 protective program for coal ash disposal without

 17 negatively impacting coal ash beneficial use,

 18 imposing unnecessary regulatory costs, and

 19 threatening jobs and increasing electricity costs.

 20 Thank you.

 21 MR. DELLINGER: Thank you. Number 8,

 22 and could Number 113 please come forward.
 31

 1 MR. PETERS: My name is Sam Peters. I'm

 2 a materials engineer practicing in Colorado for

 3 about 25 years, concrete aggregates and more

 4 recently fly ash the last few years. Would like

 5 to make a few statements.

 6 I've been impressed with how much fly

 7 ash has been able to be beneficially used in

 8 concrete. As a materials engineer, it makes

 9 concrete a much better building material, as well

 10 as being more cost- effective.

 11 As a taxpayer when I see fly ash not

 12 being able to be incorporated in the

 13 infrastructure of this country, I think it's a

 14 waste of tax dollars not to put to use a great

 15 byproduct in a beneficial use. As a consumer of

 16 electricity, I don't see an upside to increased

 17 electrical costs to dispose of a nonhazardous

 18 material just because it becomes classified as

 19 hazardous.

 20 Kingston was, in my opinion, very

 21 unfortunate, but it was an impoundment issue. If

 22 you think of there's been dam failures in this
 32

 1 country and the Bureau of Reclamation has never

 2 considered stored water a hazardous material.

 3 We've had bridge failures, building failures.

 4 The way to deal with minimizing risks to

 5 society is design, construction, maintenance, and

 6 inspection. I think if we would look at the ways

 7 that the hydraulic disposals have occurred -- and

 8 that's where most of the failures have been. We

 9 should look at the impoundment issues and the way

 10 we dispose of ash if it can't be beneficially used

 11 but not increase costs to society.

 12 Thank you.

 13 MR. DELLINGER: Thank you. Number 113.

 14 MR. SHELTON: Thank you. Good morning.

 15 My name is Gary Shelton, and I'm with Boiler

 16 Material Technologies. Boiler Material

 17 Technologies is one of the leading and largest

 18 coal ash -- coal combustion products management

 19 and marketing firms here in the U.S.

 20 Our principal business is coal

 21 combustion product management and marketing.

 22 We've been doing that for over 50 years now, and
 33

 1 we employ about 180 people national, here in the

 2 states.

 3 Certainly on behalf of our company and

 4 myself personally we do support the efforts to

 5 protect the environment and human health. That's

 6 unequivocal, and certainly we want the right thing

 7 done in that regard. We believe and I believe

 8 that that can be accomplished without a Subtitle C

 9 classification.

 10 It can be accomplished, on the other

 11 hand, with a nonhazardous Subtitle D

 12 classification. We've been doing that for a long

 13 time. The industry has been doing that for a long

 14 time, and the history is clear and conclusive that

 15 it can be done.

 16 Kingston and any other spill events are

 17 disposal issues. There's no doubt about it. It

 18 was not the product that caused the failure in

 19 Kingston and the disaster that concluded in

 20 Tennessee. So in -- in regard to that we believe

 21 that if sound engineering and storage and

 22 management practices had been in place that
 34

 1 disaster would have been averted.

 2 Currently one of the largest consumers,

 3 as we've already heard this morning, of CCPs is

 4 use of fly ash in concrete. The evidence is

 5 conclusive and clear in that regard as well.

 6 There are many engineering characteristics that

 7 are improved by the use of fly ash in concrete,

 8 and the environmental benefits are also clear.

 9 When you look at reduced CO2 emissions,

 10 reduced use of natural and virgin resources used

 11 to produce concrete, there's no doubt that the use

 12 of CCPs is a variable option.

 13 Other areas where we're seeing growth of

 14 CCP usage is as a mineral filler and in hot-mixed

 15 asphalt and other things, and we expect those uses

 16 to continue as our nation tries to conserve our

 17 valuable natural resources.

 18 The stigma issue is real. There's no

 19 doubt about it. I've heard firsthand from

 20 concrete producers, contracts, engineers,

 21 architects, and various agencies that it will

 22 impact their view and their further use of coal
 35

 1 combustion products. So it is definitely a real

 2 issue.

 3 In any way, shape, or form a Subtitle C

 4 classification will have at least at the very

 5 minimum a nonpositive effect on the use of fly

 6 ash.

 7 So thank you for your time. Appreciate

 8 you hearing my comments.

 9 MR. DELLINGER: Numbers 9, 10, 11, and

 10 12.

 11 MS. NOBLE: Good morning. My name is

 12 Annely Noble, and I am a citizen who is passionate

 13 about recycling. Coal combustion residuals are

 14 second only in volume to municipal solid waste,

 15 and coal combustion residuals have been recycled

 16 up to 45 percent to date, and this is one of the

 17 most successful stories of our time.

 18 I'm concerned about the implications

 19 that an EPA RCRA Subtitle C ruling will have on

 20 recycling of beneficial use of CCRs. The EPA

 21 declared coal combustion residuals nonhazardous in

 22 1993 and again in 2000. So I don't understand why
 36

 1 the EPA is once again revisiting this

 2 classification. It just doesn't make sense.

 3 I'm pleased that the rate of CRR

 4 beneficial use has increased from approximately 15

 5 percent in 1966 to approximately 45 percent in

 6 2008. This currently means that annually more

 7 than 40 percent of ash produced in the U.S. has

 8 not been disposed in landfills or stored

 9 containment ponds.

 10 This also means that annually each ton

 11 of CCR used in replacement of portland cement and

 12 concrete has saved one ton of CO2 emissions from

 13 our atmosphere.

 14 Additionally this means that concrete

 15 made with fly ash and used in construction has

 16 produced stronger, longer lasting, and more

 17 durable roads, bridges, and buildings. This also

 18 means that FGD gypsum used in agriculture and

 19 wallboard has replace natural occurring gypsum

 20 eliminating the cost of mining virgin materials.

 21 Although I understand that Subtitle C

 22 may include an endorsement for beneficial use of
 37

 1 CCRs, I do not understand the logic that says a

 2 product is hazardous for disposal yet nonhazardous

 3 for recycling or beneficial use. It doesn't make

 4 sense. Who would recycle material labeled

 5 hazardous into the foundation and walls of a

 6 school, a hospital, or a home?

 7 I have already heard beneficial use of

 8 coal ash has declined for fear of retroactive

 9 litigation should EPA rule Subtitle C due to the

 10 stigma. A hazardous label on any CCR will create

 11 a stigma for all CCRs and will result in the

 12 decline of CCP usage.

 13 I strongly urge the EPA to regulate coal

 14 combustion residuals as nonhazardous under RCRA's

 15 Subtitle D, the requirements of which could be

 16 implemented in a matter of months. Additionally,

 17 I strongly urge the EPA to provide a federal

 18 regulatory framework to make national ash

 19 utilization, handling, and disposal consistent,

 20 safe, and fair.

 21 Thank you for the time.

 22 MR. GOSS: Good morning. My name is
 38

 1 David Goss. I work for McDonald Farms Enterprises

 2 in Longmont.

 3 Established in 1966, we provide a wide

 4 variety of transportation, resource recovery,

 5 waste and industrial processing services including

 6 ash management and beneficial-use projects for

 7 several local utilities. We're very concerned

 8 that changing the classification of coal ash from

 9 nonhazardous to a special waste under Subtitle C

 10 could have many costly impacts on our business.

 11 Recently during negotiations with one

 12 utility customer they proposed a new requirement

 13 for us to carry environmental impairment liability

 14 or contractors pollution liability insurance for

 15 every beneficial-use project that we wanted to do.

 16 They're asking for coverage of up to $6 million in

 17 order to protect them.

 18 Furthermore, they're asking for

 19 indemnification for any beneficial-use project

 20 that releases them from any and all claims forever

 21 whether known or unknown from the present to any

 22 date in the future.
 39

 1 These new requirements will more than

 2 triple our insurance costs and hold us liable for

 3 any considerable claim in the future because they

 4 believe the EPA will classify coal ash as a

 5 hazardous material. Since beneficial use is

 6 extremely sensitive to costs, these new

 7 requirements will eliminate our ability to compete

 8 against commercial products or native materials,

 9 and we will be forced to cease any beneficial-use

 10 projects.

 11 Our attorneys urged us not to accept

 12 these new requirements -- these proposed

 13 conditions. However, we still see great benefit

 14 in being able to use or recycle coal ash into such

 15 applications as waste stabilization, flowable flow

 16 mixes, and road construction. It's much better to

 17 keep the ash out of landfills and instead place it

 18 where it can safely perform to meet engineered

 19 technical requirements.

 20 With more than 40 years of experience,

 21 we've never seen any evidence of adverse

 22 environmental impact where we have used coal ash
 40

 1 in railroad embankments, structural fills,

 2 flowable fills, or waste and soil stabilization.

 3 For every project, we characterize the

 4 native soils and determine local water conditions

 5 before planning placement of ash. We sample and

 6 analyze the ash we use to be sure there's no risk

 7 to surrounding land or community. We find that

 8 coal ash can be used safely presenting no more

 9 risk to the environment than native soils.

 10 In fact, most coal ash in Colorado has

 11 lower levels of heavy metals than do the native

 12 soils. In our very dry climate, managing storm

 13 water and snow run-on and runoff is relatively

 14 easy. However, if classified as a hazardous

 15 material, we will no longer use coal ash because

 16 of the potential risks that some of our clients

 17 feel we need to ensure or indemnify.

 18 We urge you not to classify coal ash as

 19 a special waste under Subtitle C. Thank you.

 20 MR. DELLINGER: Number 11.

 21 MR. AHO: Thank you. My name is Andrew

 22 Aho. I'm the managing director of the
 41

 1 Geosynthetic Materials Association, a trade group

 2 of 80 manufacturers and distributors of

 3 geosynthetic materials including lining systems.

 4 The industry employees 12,000 people throughout

 5 the U.S.

 6 Our comments for the EPA is simple. We

 7 request that the EPA mandate that geosynthetic

 8 material lining of coal ash storage facilities

 9 using composite lining systems. In the shortest

 10 terms, use liners. Liners work, specifically

 11 composite liners.

 12 Concerns of safety regarding CCRs are

 13 mitigated if the landfill storage sites are lined

 14 with a composite system of a geomembrane and a

 15 geosynthetic clay liner. The composite liner

 16 system prevents the leachate from entering the

 17 environment. Safety concerns regarding surface

 18 impoundments are also mitigated if impoundments

 19 are lined with a composite lining system.

 20 The American Association of Civil

 21 Engineers does a regular report card on America's

 22 infrastructure. For the last three report cards
 42

 1 representing over a decade, soil waste has

 2 received the highest grade of any category. My

 3 industry does a good job of taking America's waste

 4 and properly storing it to protect the

 5 environment.

 6 The materials, technology, and people

 7 exist. The engineers, engineering techniques, and

 8 standards, the general contractors and installers

 9 who can build the proper facilities exist. The

 10 regulators and inspectors who insure the work is

 11 done properly -- done correctly also exist. We

 12 urge the EPA to use what exists and is working

 13 today.

 14 Further, our industry has continuously

 15 improved over time, and the EPA has been part of

 16 that effort. Over the years the EPA has

 17 commissioned nearly 80 studies of the design and

 18 performance of lining system. We specifically

 19 call your attention to a 2002 study title

 20 Assessment and Recommendations for Optimal

 21 Performance of Waste Containment Systems.

 22 That study contains a great deal of
 43

 1 pertinent information on how to construct a

 2 containment system. Most illustrative is a graph

 3 charting the leakage rate of different designs

 4 over the life cycle of nearly 200 facilities.

 5 The composite liner system of a

 6 geomembrane and geosynthetic clay liner is

 7 demonstrated to have the lowest leakage rate over

 8 all life cycle stages including near zero leakage

 9 rate after the facilities are closed and the final

 10 cover placed. Our materials work.

 11 A brief word on the hazardous/non-

 12 hazardous issue. We believe that coal ash lacks

 13 the traditional characteristics of hazardous

 14 materials. In the opinion of our trade

 15 association, coal ash can be properly stored using

 16 Subtitle D regulations, a nonhazardous solid waste

 17 designation with a composite liner system.

 18 Thank you.

 19 MR. DELLINGER: Number 12.

 20 MR. ADAMS: Yes. My name is Joby Adams.

 21 I've been a practicing hydrogeologist for the past

 22 24 years. Most of my work has been with --
 44

 1 focusing on groundwater investigations and

 2 RCRA-related corrective actions.

 3 In 1998, though, I was asked to evaluate

 4 the feasibility of using coal ash to reclaim

 5 flooded gravel quarries on the Front Range of

 6 Colorado. This lead me to a number of short and

 7 long-term leaching tests comparing various

 8 combustion residues. I also did leaching tests

 9 comparing materials considered inert such as

 10 recycled asphalt and concrete.

 11 The results of my bench-scaled testing

 12 then lead to a field-scaled test where I buried

 13 400 tons of coal ash beneath the water table in an

 14 unlined pit. This was done under a Department of

 15 Energy grant and permitted by the State of

 16 Colorado.

 17 At the end of our one-year monitoring

 18 period, which we monitored the water qualities of

 19 the coal ash and aquifer up- and downgradient, we

 20 had violated no water quality standards as

 21 established by the State.

 22 When I became aware the EPA was
 45

 1 contemplating regulating CCRs under Subtitle C, it

 2 reminded me of an article I read in 1991. The

 3 name of this article is called New Measure of

 4 Risk, and the premise of the article is that when

 5 people do not understand the scientific processes

 6 and trying to eliminate every risk that is

 7 presented, the public resources are directed to

 8 areas that are of little benefit and -- or come at

 9 a staggering cost. I believe that if CCRs are

 10 regulated under Subtitle C, this will be the case.

 11 U.S. oil production has been decreasing

 12 since 1972; world production since 2006. It is

 13 estimated that the United States has one quarter

 14 of all the world's coal reserves with an energy

 15 equivalency of all the known oil reserves in the

 16 world. It's a simple fact that for many decades

 17 to come we will rely on coal ash for an energy

 18 source.

 19 I believe that the cost estimates

 20 associated with the regulation of Subtitle C are

 21 underestimated. I also believe that we must

 22 advocate the beneficial reuse of the byproduct
 46

 1 from the energy source that we must use, and I

 2 believe that if regulated under Subtitle C, the

 3 beneficial-reuse programs will be curtailed or

 4 possibly even eliminated to a substantial degree.

 5 Thank you.

 6 MR. DELLINGER: Thank you. Numbers 13,

 7 14, 15, and 16.

 8 MR. USSERY: I'm David Ussery,

 9 U-S-S-E-R-Y, environmental services manager for

 10 Platte River Power Authority in Fort Collins,

 11 Colorado. Platte River is a municipally owned,

 12 not-for-profit electric generation and

 13 transmission company serving Estes Park, Fort

 14 Collins, Loveland, and Longmont, Colorado.

 15 Platte River is a political subdivision

 16 and public corporation of the state of Colorado.

 17 Platte River owns and operates the Rawhide Energy

 18 Station consisting of one 280-megawatt coal-fired

 19 generating units and five natural-gas-fired

 20 combustion turbine generating units.

 21 We generate approximately 67,000 tons

 22 per year of fly ash and 10,000 tons per year of
 47

 1 bottom ash. We have annually sold up to 12,000

 2 years -- 12,000 tons of fly ash.

 3 Platte River prefers the development of

 4 federal regulations for CCRs under RCRA Subtitle

 5 D, nonhazardous waste rules. Additionally, EPA

 6 should select the Subtitle D prime option as the

 7 appropriate course to pursue within the Subtitle D

 8 framework because it avoids the absolute

 9 requirements to retrofit all surface impoundments

 10 irrespective of their environmental performance.

 11 This option correctly recognizes that

 12 existing CCR impoundments should be allowed to

 13 continue operating provided that these units meet

 14 applicable groundwater monitoring and structural

 15 standards and thus are operating in an

 16 environmentally sound manner.

 17 The State of Colorado must be given a

 18 role in implementation of the Subtitle D option.

 19 This will avoid duplication with existing state

 20 programs and provide the Subtitle D option with

 21 the direct permitting mechanism the EPA wants.

 22 EPA already has authority under Section
 48

 1 4010(c) to issue federally enforceable rules under

 2 Subtitle D for CCRs. The closure period under

 3 Subtitle D option is too short. Five years is not

 4 adequate time to close surface impoundments that

 5 are currently in use according to logistic,

 6 procedural, and operational concerns.

 7 Clay liner systems should be an

 8 acceptable alternative to the composite liner

 9 system for existing facilities. Alternative liner

 10 designs should be available based on a specific

 11 performance standard.

 12 Platte River strongly opposes regulation

 13 of CCRs under RCRA hazardous waste program. Even

 14 though CCRs would be labeled, quote, special

 15 waste, unquote, EPA has stated that CCR special

 16 waste would be subject to full hazardous waste

 17 control just like any other hazardous waste. This

 18 is despite the fact that most CCRs do not exhibit

 19 characteristics classified as hazardous waste.

 20 We currently operate our facility as a

 21 small-quantity generator of hazardous waste. The

 22 Subtitle C proposal would put us in a
 49

 1 large-quantity generator status.

 2 Thank you very much.

 3 MR. DELLINGER: Number 14.

 4 MR. LITTLE: I'm Tom Little, marketing

 5 and community relations manager from Platte River

 6 Power Authority in Fort Collins. As the previous

 7 speaker Dave Ussery stated, Platte River owns and

 8 operates the Rawhide Energy Station, which

 9 includes a 280-megawatt coal-fired generating

 10 unit.

 11 Since the utility's inception in 1973,

 12 Platte River has demonstrated willingness to make

 13 sizeable voluntary investments in systems that

 14 reduce environmental impacts at its facilities.

 15 Low-NOx burners and separated overfire air

 16 technologies are employed at Rawhide, as is a dry

 17 scrubber to remove the SO2 from the plant's

 18 exhaust stream.

 19 The result, according to EPA data on NOx

 20 emission and SO2 emission rates, Rawhide is among

 21 the cleanest coal-fired generating units in the

 22 country.
 50

 1 Approximately 67,000 tons of what is

 2 often termed dry "flue gas desulfurization" or FGD

 3 ash is produced annually at Rawhide. Dry FGD ash

 4 is a mixture of fly ash, lime, and the sulfur

 5 removed from the exhaust stream. One of my jobs

 6 is to find beneficial uses for the FGD ash

 7 produced at Rawhide.

 8 If new regulations for CCRs are

 9 required, Platte River prefers development of

 10 these under RCRA Subtitle D nonhazardous waste

 11 rules. Platte River strongly opposes CCRs under

 12 the more costly Subtitle C waste rules.

 13 Based on years of experience, in

 14 particular we reject the EPA's cost benefit

 15 scenario that assumes that increased future cost

 16 of regulated CCR disposal will induce coal-fired

 17 generating units to increase beneficial uses of

 18 their CCRs.

 19 With goals of avoiding disposal costs

 20 and saving natural resources, Platte River has

 21 worked diligently to gain industry acceptance of

 22 Rawhide FGD ash for use in many existing
 51

 1 fly-ash-using applications.

 2 After several rather frustrating years

 3 of trying, we've achieved very limited success due

 4 to changes in the chemical and reactive properties

 5 of the ash caused by the sulfur that's mixed in

 6 during the SO2 removal process. We're are on pace

 7 to sell only about 6 percent of our ash this year

 8 at very nominal prices.

 9 Industrial users of fly ash simply find

 10 it more desirable to use non-sulfur-containing ash

 11 from unscrubbed plants. I believe this has also

 12 been the experience of utilities employing dry

 13 scrubbers.

 14 According to data from surveys conducted

 15 by the American Coal Ash Association, only about

 16 12 percent of dry FGD ash produced between 2003

 17 and 2008 has been used for beneficial purposes.

 18 In summary, I'd like to make it clear

 19 that the motivation and ability to increase

 20 beneficial use of dry FGD ash will definitely not

 21 increase due to increased costs of CCR removal --

 22 disposal as the EPA assumes. Beneficial use of
 52

 1 the ash will increase or decrease only as a result

 2 of the industry's perceptions of the benefits and

 3 risk involved.

 4 Thank you very much.

 5 MR. DELLINGER: Number 15.

 6 MS. GOEBEL: My name is Betty Goebel,

 7 and I'd like to thank you, the EPA, for

 8 re-examining the whole issue of treatment of coal

 9 ash. I'm the executive director of Colorado

 10 Interfaith Power and Light.

 11 Through our state organizations,

 12 congregations of all faith traditions worked

 13 together on energy and climate issues. Today I,

 14 with other religious leaders who will speak later,

 15 are asking the EPA to adopt Subtitle C.

 16 All faith traditions share a concern for

 17 the environment, the gift of creation. We're

 18 concerned about the use of coal because of its

 19 impact on global climate change, but today it's

 20 about a different hazard, coal ash, which has a

 21 long list of toxins which I will not repeat.

 22 In addition to concern for the
 53

 1 environment, faith traditions also share a concern

 2 for the poor. Today I speak for the poor who will

 3 surely be under-represented here.

 4 The EPA's own data shows that over half

 5 of the coal ash storage locations are in areas

 6 that are predominantly low income. Low income

 7 areas have long been the dumping ground for toxic

 8 waste, and the poor have been disproportionately

 9 affected by the health problems.

 10 Subtitle D lacks any meaningful

 11 enforcement mechanism. The burden is on the

 12 citizen to bring suit when the industry has not

 13 adhered to recommended standards. This puts an

 14 unacceptable burden on low-income victims of coal

 15 ash health problems. These are the people who are

 16 least likely to be able to mount a serious

 17 challenge to the industry.

 18 Low-income people are often less well

 19 educated, have less access to PC and Internet

 20 technology, less knowledge of how to access and

 21 interpret environmental data, and the least likely

 22 to have resources for a time-confusing legal
 54

 1 battle.

 2 When you are working two to three jobs

 3 to put food on the table, it's hard to muster the

 4 energy you need to organize an effective challenge

 5 to a powerful industry, even when you know that

 6 something is making you, your children, and your

 7 neighbors sick.

 8 If the industry is looking for a group

 9 of people least likely to challenge them, they

 10 have the right population when their storage sites

 11 are in low- income areas. There are instances of

 12 contamination, not just Kingston, not just

 13 Colstrip. This industry has been unable to

 14 produce (sic) itself and neither have the state

 15 governments.

 16 I urge the EPA to adopt Subtitle C.

 17 Education is the solution to stigma concerns, and

 18 we do not oppose the use of encapsulated

 19 beneficial reuse.

 20 Thank you very much for your time.

 21 MR. DELLINGER: Thank you. Could

 22 numbers 201, 202, 203, and 204 come forward,
 55

 1 please.

 2 MS. LEBER: My name is Tex Leber. I'm

 3 with Nebraska Ash Company. We are a small

 4 ash-handling company localized in Nebraska. We

 5 handle the coal combustion residues for two

 6 utilities in Nebraska, and we currently market

 7 about 40 to 50 percent of the fly ash and bottom

 8 ash that's produced.

 9 We are in support of regulating under

 10 Subtitle D but are opposed, of course, to and have

 11 great concern if it were to be regulated under

 12 Subtitle C.

 13 A hazardous or special waste when CCRs

 14 are disposed would cause great stigma reducing or

 15 eliminating the beneficial uses of our products,

 16 and we have a number of customers who have been

 17 asking questions about it; questions such as what

 18 happens if we have a spill of materials -- we have

 19 a load of ash coming to the plant and we have a

 20 spill? Are we then going to have to handle that

 21 as a hazardous material for clean-up, and what

 22 things will we have to go through in order to get
 56

 1 that cleaned up?

 2 Another is, Why would I want my

 3 employees handling a material that's considered

 4 hazardous if it's disposed of. And another

 5 question that's come up, If concrete containing

 6 fly ash is removed, does it require special

 7 handling and must it be taken to a hazardous

 8 landfill?

 9 And another question has been -- when

 10 the concrete is first put in place and they're

 11 sawing control joints in the concrete, what about

 12 the dust that's created from that? Are we going

 13 to have a special requirement because of the dust

 14 that's contained in that?

 15 And due to these concerns we've had a

 16 number of them that are saying if -- if it is

 17 determined that it's a hazardous or a special

 18 waste material, we will more than likely go ahead

 19 with using straight cement and not use the fly

 20 ash, which, of course, is going to be a huge

 21 problem for our company. And it's -- their

 22 reasoning is because of the additional liability.
 57

 1 And one of the utilities that we market

 2 for that we actually -- it's about 50 percent of

 3 our product, they're saying if it's regulated

 4 under Subtitle C that they're not going allow the

 5 product to even go off-site; that due to the

 6 liabilities, they wouldn't want it scattered over,

 7 you know, a number of projects.

 8 So that's -- that would leave our

 9 company more than likely out of business, and even

 10 though we are a small company, it would eliminate

 11 a number of jobs.

 12 Thank you for your time.

 13 MR. DELLINGER: 201.

 14 MS. KAY: My name is Melanie Kay, and

 15 I'm an associate attorney for Earthjustice, a

 16 nonprofit environmental law firm. Thank you for

 17 the opportunity to speak today.

 18 This rulemaking is of monumental

 19 importance to the protection of health and the

 20 environment. How we deal with enormous volumes of

 21 coal ash will have vital implications for the

 22 future health of our communities, and for this
 58

 1 reason it is imperative we properly regulate coal

 2 ash via Subtitle C.

 3 Today I'd like to focus on three points

 4 particularly relevant to this hearing's location

 5 in Denver. First, the current laws of western

 6 states governing coal ash disposal are grossly

 7 inadequate. Of the 10 states surrounding Colorado

 8 that generate the largest volumes of ash, seven do

 9 not require groundwater monitoring at coal ash

 10 surface impoundments.

 11 This single regulatory requirement is so

 12 important that EPA uses it as a benchmark to

 13 predict whether a state will adopt the proposed

 14 Subtitle D guidelines. In other words, if a state

 15 has not yet required its most dangerous waste

 16 dumps to monitor the underlying groundwater, then

 17 EPA assumes that these states will not enforce or

 18 adopt new guidelines that are not mandatory.

 19 Thus EPA believes that the west, with

 20 its booming coal industry, is out of luck for the

 21 Subtitle D scheme.

 22 And the status quo of state regulations
 59

 1 is indeed dismal. In fact, Kansas, Montana, New

 2 Mexico, and Utah exempt coal ash from their solid

 3 waste regulations entirely. Consequently,

 4 landfills and waste ponds are not required by law

 5 in these four states to employ even the most basic

 6 safeguards such as liners, monitoring, corrective

 7 action, and financial assurance.

 8 Second, the arid west presents unique

 9 and serious problems associated with improper coal

 10 ash disposal. Potable groundwater is a

 11 particularly precious resource. Yet at numerous

 12 sites near western plants, mismanagement of ash

 13 has contaminated this scarce resource; for

 14 example, at the Ried Gardner Generating Plant in

 15 New Mexico, San Juan Generating Station and Four

 16 Corners Power Plant in New Mexico, Northeastern

 17 Station in Oklahoma, and Dave Johnston Plant in

 18 Wyoming.

 19 Further, fugitive dust at western coal

 20 ash dumps is a fact of life in our climate.

 21 Despite the likelihood of serious NAAQS

 22 violations, many western states do not require
 60

 1 daily cover, including Arizona, North Dakota, New

 2 Mexico, and Oklahoma. In fact, severe fugitive

 3 dust problems are currently plaguing communities

 4 in Fruitland, New Mexico, and Bokoshe, Oklahoma.

 5 Third, in view of our proximity to the

 6 headquarters of the American Coal Ash Association,

 7 it is important to dispel a misconception asserted

 8 repeatedly by the ACAA, that there are no damage

 9 cases caused by coal ash reuse.

 10 We ask both EPA and the ACAA to review

 11 our report published last February, co-authored by

 12 the Environmental Integrity Project, that

 13 describes two sites where the use of ash as

 14 structural fill contaminated groundwater.

 15 In addition, EPA itself documented that

 16 coal ash used as fill contaminated drinking water

 17 in Pines, Indiana, and led, in part, to the town's

 18 designation as a federal Superfund site.

 19 In conclusion, nothing but federally

 20 enforceable minimum standards under Subtitle C

 21 will work for the west, and I therefore strongly

 22 encourage the EPA to adopt these standards.
 61

 1 Thank you.

 2 MR. DELLINGER: Number 202.

 3 MR. HUNT: Yes. My name is R. G. Hunt,

 4 and I'm from Waterflow, New Mexico. And the

 5 reason why I come up here today is because I am a

 6 victim of the coal combustion waste and the

 7 nonsense that goes on.

 8 And back in 1982 I damned near lost my

 9 family due to the fact the power plant was dumping

 10 untreated human waste and industrial toxic waste

 11 down to our property. And the EPA and EID had

 12 full knowledge my well was polluted, and they

 13 never done nothing.

 14 The kids' age is two to five, and this

 15 is the kind of deal, I'm just new barely after 30

 16 years can get up and talk about it. And they

 17 killed 1,400 head of sheep and wouldn't even allow

 18 to put city water in there for the poor bastards

 19 to drink.

 20 And if that coal combustion waste is so

 21 good, I wish you guys would just come down there

 22 where it goes across that Highway 6800 and have a
 62

 1 glass of it. Because I'll guarantee you one

 2 thing, it'll make you want to puke.

 3 And you know, on the 1,400 head of

 4 sheep, those poor buggers, they would get

 5 polioencephalomalacia, and they'd get white muscle

 6 disease where they lay down and they couldn't even

 7 get up, and watch them poor animals die like that.

 8 There was no reason for it.

 9 And what happened in New Mexico,

 10 environmental department come in and said -- took

 11 some tests on four of them after 13 months of

 12 making them poor animals drink that water, and

 13 they come back and said, Poor care killed them

 14 animals. Where they said they was in good

 15 nutritional condition. And I'm still being

 16 retaliated against by the New Mexico environment

 17 department.

 18 And my kids, they was age 5 to 2, and

 19 when the state epidemiologist came in and said due

 20 to the fact this one family is not worth

 21 investigating, the kids made a pact. They're

 22 going to be better to their government than what
 63

 1 their government was to them.

 2 And what they did, the only thing they

 3 could do, is myself -- I've got an eighth grade

 4 education. I suffer from ADHD. And them little

 5 kids got a 52-year sentence.

 6 I thank you.

 7 MR. DELLINGER: Number 203. Is 204 in

 8 the room? I've called you up to the mike. Thank

 9 you.

 10 MS. LOGAN: My name is Carla Logan. I'm

 11 from Waterflow, New Mexico. I'm his wife. I am

 12 not a scientist. I am not a recycling aficionado,

 13 although I firmly believe that we need to use the

 14 materials that God gave us in the very best

 15 possible way instead of throwing them into the

 16 landfill.

 17 I am a mother, a wife, and a

 18 grandmother. Between my husband and I, we have

 19 eight children. We have 21 grandchildren, and we

 20 live on a property that has been in his family for

 21 over 50 years. We have extended family of

 22 probably 200 people in that immediate area.
 64

 1 We live directly adjacent to San Juan

 2 Generating Station to Waterflow, and one of the

 3 waste sites that is being discussed here in New

 4 Mexico goes through our property.

 5 Up until the time the San Juan

 6 Generating Station was located there, all of the

 7 neighbors in the community around them used

 8 groundwater wells and had used them for many

 9 years. After San Juan Generating Station was

 10 located there and they began to bury the fly ash

 11 in unlined pits, it began to seep into the

 12 groundwater wells.

 13 I do not know all of the specifics of

 14 the -- as far as the medical problems, as far as

 15 the toxic materials, but I know that the children

 16 got sick. His family alone has lost six family

 17 members who were healthy, athletic as children,

 18 and they have died at an early age, under 40, for

 19 no apparent reason other than cancer, leukemia,

 20 and major illnesses that the doctor say could be

 21 attributed to heavy metal poisoning and to the

 22 water.
 65

 1 Once that family went on to public water

 2 rather than the groundwater, their health began to

 3 improve, but my consideration -- my concern is

 4 what are the long-term lasting effects of those

 5 fly ash pits that are still there.

 6 I do understand that there are

 7 mitigating things. I do understand there are ways

 8 to mitigate, but it will not bring back the people

 9 who have died. It will not replace the health

 10 that they have lost, and it will not give me the

 11 assurance that I can have family reunions and

 12 family picnics on our property in a place that the

 13 kids used to love to play in the creek, that there

 14 were frogs, toads, and fish, and now there is

 15 nothing, because we have watched animals die.

 16 Thank you.

 17 MR. DELLINGER: Numbers 17, 18, 20, and

 18 114 come forward, please.

 19 MS. BROWN: Good morning. My name is

 20 Elouise Brown. I'm the president of Dooda Desert

 21 Rock. Dooda means absolutely no, absolutely not.

 22 And Dooda Desert Rock is a Navajo grassroots group
 66

 1 and non-governmental organization that advocates

 2 the interests of the Navajos in the face of the

 3 excesses of the extractive industries in our area.

 4 We live in the notorious national

 5 sacrifice area of the Four Corners, and my people

 6 have been the targets of energy development abuses

 7 for decades.

 8 We are glad that the regulation of the

 9 coal combustion residuals, coal ash, is finally on

 10 the regulatory radar of the Environmental

 11 Protection Agency. I will be brief in stating the

 12 problem, our primary concern, the rights involved

 13 and our recommendations for regulatory action.

 14 The problem. There are two producing

 15 coal-burning power plants in the Four Corners

 16 area; the San Juan Generating Station,

 17 off-reservation to the west of Farmington, New

 18 Mexico, and the on-reservation Four Corners Power

 19 Plant within the Navajo Nation.

 20 We do not know whether the power plant

 21 is dumping coal -- we do not know where the power

 22 plants are dumping their coal ash, and our
 67

 1 attorney was unable to get information from the

 2 informant he met with recently on whether coal ash

 3 is being dumped in Morgan Lake in our area.

 4 A new proposed power plant, the

 5 so-called Desert Rock Plant, is still undergoing

 6 review for various permits, although there are

 7 lingering questions about the existing plants.

 8 One is, What is being done about the coal ash from

 9 the San Juan Generating Power Plant?

 10 The other one is, If anything -- if the

 11 EPA is doing anything about the reports that

 12 emissions from the two existing plants are hurting

 13 Navajos.

 14 When the Desert Rock clean air permit

 15 was pending, the San Francisco office warned of a

 16 report that pollution from the San Juan Generating

 17 Station and the Four Corners Power Plant adversely

 18 affects the health of the Navajos in the downwind

 19 Shiprock area.

 20 They are forced to seek medical

 21 attention for respiratory complaints at five times

 22 the rate of others, and children under 5 and
 68

 1 adults over 56 must get medical attention at 10

 2 times the average rate.

 3 The EPA warned the Bureau of Indian

 4 Affairs that the reported situation had to be

 5 addressed. It wasn't, although we warned the BIA

 6 too.

 7 Since then we have been unable to get

 8 EPA to tell us the current situation or what is

 9 being done about the problem. Our discrimination

 10 complaint against the EPA was rejected by its

 11 civil rights division, and our letters asking for

 12 information about -- have been unanswered.

 13 The problem is that when we do raise

 14 concerns about health risks and regulatory

 15 inaction, they're ignored -- they are ignored. We

 16 want to change -- we want -- we want that to

 17 change under the administration.

 18 We are not just commenting on the coal

 19 ash regulation. We are commenting on it in light

 20 of the past EPA inaction about concerns.

 21 And our primary concern is that we are

 22 unaware -- we are aware that the United Nations
 69

 1 Committee on Elimination of Racial Discrimination

 2 has faulted the United States for following (sic)

 3 extractive industries to abuse indigenous rights

 4 in the United States and abroad. The committee

 5 recommended that the United States must pay

 6 greater attention to extractive industries

 7 activities.

 8 MR. LIVNAT: Your time is up.

 9 MS. BROWN: Thank you.

 10 MR. DELLINGER: Number 17.

 11 MR. CONNELL: Good morning. I'm Ken

 12 Connell. I'm here in several different

 13 capacities, but I only had one hat this morning.

 14 First off, I'm here on behalf of the Sierra Club

 15 as a member. I'm supporting the work of the EPA

 16 in strengthening coal ash regulation and

 17 monitoring.

 18 I'm also here as a volunteer coordinator

 19 for Denver Metro Council of MoveOn.org and our

 20 almost 100,000 members and residents in the state

 21 of Colorado.

 22 Thirdly, I'd like to at least note that
 70

 1 I have an academic background in industrial and

 2 organizational psychology, social psychology. So

 3 I'm very much an advocate for your applying

 4 contemporary scientific standards in evaluating

 5 and justifying the kinds of remedies that are

 6 proposed.

 7 And while I'm sympathetic to the

 8 beneficial uses, I have some cautions, because the

 9 research literature that I have seen, limited that

 10 it be, has been suggestive, at least, that some of

 11 the so-called beneficial uses have hidden

 12 consequences. And so I'd like that to be done on

 13 a cautionary basis and as reviewed by current

 14 scientific standards.

 15 So overall full disclosure, get the

 16 chemical analysis done so that we do, in fact,

 17 have public disclosure of what is available in the

 18 ground, what the liquids consist of as toxic coal

 19 ash, and that the precautions be set up in a way

 20 that we can continue to follow the state of the

 21 science as well as the known consequences and

 22 research.
 71

 1 I'm not unsympathetic to the industry.

 2 We do have tremendous energy needs, and coal is

 3 going to be a major player. It's simply that the

 4 cost between industry and society and the human

 5 consequences need to be rebalanced.

 6 We have had for too long, going back to

 7 even the 1812 Minerals Act, a situation where

 8 industry was greatly encouraged to bring the

 9 profit motive to the front.

 10 And corporations, as we're finding with

 11 this report decision on Citizens United, are

 12 getting too strong in the society, and they're

 13 going destroy the democracy on which we're based

 14 because they have international interests, they

 15 have profit-making interests and requirements, and

 16 they are not chartered to fulfill the best

 17 interest of our people and our country.

 18 Thank you.

 19 MR. DELLINGER: Number 18.

 20 MR. FINLINSON: Good morning. I'm Jon

 21 Finlinson. I'm with -- I'm the president and

 22 chief operations officer of Intermountain Power
 72

 1 Service Corporation, and I'm testifying today on

 2 behalf of the Intermountain Power agency and

 3 Intermountain Power project, of IPP, in Utah.

 4 IPP is a power provider for a 36-member

 5 electric utilities municipalities and electric

 6 associations located in Utah, Nevada, and

 7 California. IPP's members will be directly

 8 impacted by the final CCR rule due to increased

 9 costs.

 10 At IPP we take our environmental

 11 responsibility seriously. Since the project's

 12 inception, IPP has voluntarily put in place

 13 disposal practices that are protective of the

 14 environment, including lined engineered ponds for

 15 bottom ash, dry handling systems for fly ash,

 16 groundwater monitoring, acceptance of state

 17 oversight permitting, and participation in both

 18 EPA's C2P2 program and the USWAG voluntary CCP

 19 action plan.

 20 We are alarmed that EPA's actions in

 21 this rule appears to ignore the efforts of IPP and

 22 others and effectively penalizes the proactive
 73

 1 activities of the industry.

 2 IPP favors the development of federal

 3 regulations for CCRs under RCRA's Subtitle D

 4 nonhazardous waste program. IPP shares EPA's

 5 objective of having a federal regulatory program

 6 that ensures the safe disposal of CCRs. The D

 7 prime option will meet this objective without

 8 crippling coal ash beneficial use and imposing

 9 unnecessary regulatory costs on power plants,

 10 threatening job and increasing electricity costs.

 11 Regulation of CCRs should be applied

 12 regionally and state by state to provide optimal

 13 benefit on a case-by-case, site-by-site basis.

 14 EPA should therefore consider a mechanism for the

 15 states to administer the regulations.

 16 Although a tragedy, the TVA Kingston

 17 spill was not caused by the so-called toxicity or

 18 any characteristic specific to CRR. Any bulk

 19 material dammed in the same circumstance would

 20 also fail. Poor dam design, construction, or

 21 maintenance should not be the basis for

 22 overreaching regulation.
 74

 1 One of the elements of the D prime

 2 option that makes it the preferred option is that

 3 it would not require the automatic closure of CCR

 4 surface impoundments that are designed and

 5 operating in a manner which is fully protective of

 6 human health and the environment, such as at IPP.

 7 We agree that disposal facilities that

 8 are not fully protective must either be upgraded

 9 or closed. However, there are many CCR surface

 10 impoundments which are perfectly safe. There is

 11 no reason why these units should not be allowed to

 12 continue operating.

 13 We firmly believe that a Subtitle C

 14 designation will significantly reduce or halt the

 15 sale of coal combustion byproducts as alternatives

 16 to natural resources. Having the stigma of

 17 hazardous will catch the attention of toxic tort

 18 attorneys. In this litigious society, any

 19 playground, school, or other arena where children

 20 are present will be blamed for any ill that may

 21 arise if that facility was built with products

 22 containing CCR. Liability of this magnitude can
 75

 1 far outweigh any benefit of reuse.

 2 Thank you.

 3 MR. DELLINGER: Number 114.

 4 MR. HERNANDEZ: Good morning. My name

 5 is Doug Hernandez, and I'm the president of

 6 Flashfill Services, a small business operating in

 7 Denver, Colorado.

 8 I must say that your determination of

 9 the classification of coal fly ash is critical to

 10 my future. For the past 15 years I've been

 11 involved in manufacturing and production of coal

 12 fly ash flowable fill, which is produced as a

 13 desirable backfill material for use in utility

 14 trenches, bedded pipelines, and other necessary

 15 construction requirements.

 16 Over the past few years our company's

 17 average purchase and distribution of coal fly ash

 18 is over 20,000 tons per year for beneficial use.

 19 Our product has been a vital and intricate part of

 20 assisting the construction industry with proper

 21 placement of coal fly ash flowable backfill.

 22 We predominantly service the numerous
 76

 1 water districts and other agencies involved in the

 2 need for subsurface backfill, basically for

 3 utility repairing and replacement.

 4 Coal fly ash has a unique composition

 5 which allows us to manufacture a very liquid and

 6 flowable material with a fast curing ability. The

 7 fast curing ability offers the immediate

 8 encapsulation of the fly ash with an acceptable

 9 bearing capacity for completion and restoration of

 10 utility service allowing a quick return to public

 11 access and/or the continuation of the construction

 12 specified.

 13 The advantages of the coal fly ash

 14 backfill versus the traditional cement sand-based

 15 backfill provides the contractor a fast,

 16 economical, efficient, safe way to return a

 17 project or repair to service.

 18 Our advanced technology in dealing with

 19 coal fly ash is such that the fly ash is

 20 purchased, blended, and delivered safely. Once

 21 manufactured, it is immediately hydrated, and due

 22 to the inherent composition, the material
 77

 1 immediately solidifies into a totally encapsulated

 2 material, ultimately obtaining 115 -- 150 to 1,500

 3 PSI within 28 days.

 4 If coal fly ash is classified as a

 5 special waste requiring disposal as a hazardous

 6 waste, I anticipate that due to the liability

 7 associated with such classification, it would

 8 force our suppliers and customers to discontinue

 9 our business relationship.

 10 I also anticipate that if we were able

 11 to persuade our industry to continue the usage of

 12 our product, we would no longer be able to provide

 13 it economically due to the significant cost

 14 associated with obtaining environment liability

 15 insurance.

 16 The stigma associated with such a

 17 classification would escalate the cost of doing

 18 business and could send all our potential

 19 customers in other directions.

 20 I truly appreciate your objective to

 21 protect the welfare of the public, and I do have

 22 financial reasons for my concerns. Nevertheless,
 78

 1 I believe that if you do, in fact, classify coal

 2 fly ash as a hazardous material, you will be

 3 creating a potentially larger problem due to the

 4 fact that virtually all coal fly ash will wind up

 5 being required to be disposed of in designated

 6 landfills.

 7 In the present ash industry, a major

 8 portion of the material is being consumed for

 9 beneficial use and offers the advantage of being

 10 recycled. I truly believe that to recycle far

 11 exceeds the advantage of changing the industry by

 12 classifying coal fly ash as a hazardous material.

 13 Thank you.

 14 MR. DELLINGER: Number 20, and can

 15 Numbers 21, 22, 23, and 24 move forward.

 16 MR. HARRINGTON: Thank you for your time

 17 this morning. May name is R.J. Harrington, and

 18 I'm here today as an individual but also

 19 representing the Colorado Solar Energy Industry

 20 Association, also known as COSEIA. I'm the vice

 21 president of the board of directors.

 22 We've heard a great deal so far this
 79

 1 morning about reuse and recycling of CCRs. With

 2 all due respect to businesses both large and small

 3 that provide and profit from these reuse and

 4 recycling services, COSEIA proudly focuses on the

 5 first R, reduce.

 6 COSEIA's members, predominantly small

 7 businesses, provide the service of installation of

 8 distributed solar generation which directly leads

 9 to the reduction of CCRs from centralized fossil

 10 fuel generation.

 11 While I personally believe that CCRs be

 12 regulated under Schedule C, because of reasons

 13 outlined by Colorado Interfaith Power and Light

 14 and the proud sheep rancher and his wife from New

 15 Mexico, my relationship with COSEIA fortifies my

 16 belief that our industry's efforts in providing

 17 safe CCR-free energy will continue to reduce the

 18 effects, be they positive or negative, of CCRs

 19 under either Schedule C or D.

 20 Thank you for the opportunity to speak

 21 today.

 22 MR. DELLINGER: Number 21.
 80

 1 MR. REYNOLDS: My name is Paul Reynolds.

 2 I am the manager of generation and environment for

 3 Sunflower Electric Power Corporation. We are a

 4 regional wholesale power supplier who generates a

 5 1,257 megawatt system of wind, gas, and coal-based

 6 generation serving 400,000 customers in central

 7 and western Kansas.

 8 58 percent of our generation capacity is

 9 powered by natural gas, 42 by coal, and 10 percent

 10 comes from wind. We own and operate a single

 11 362-megawatt coal-fired unit located near Holcomb,

 12 Kansas. The unit has been in service nearly three

 13 decades and annually generates approximately

 14 100,000 tons of CCRs, a portion of which is put to

 15 beneficial use each year and the remainder is

 16 disposed of on-site in a dedicated landfill which

 17 includes a groundwater monitoring system that has

 18 been in service since day one and has confirmed

 19 that no leaching or environmental (sic) has ever

 20 occurred, and there is also a financial assure

 21 mechanism in place with the State of Kansas.

 22 Sunflower's Holcomb Station located --
 81

 1 is located in an arid area in western Kansas and

 2 is one of eight CCR disposal facilities overseen

 3 by the Kansas Department of Environmental Health.

 4 I strongly encourage the EPA to maintain

 5 the Bevill amendment and regulate the disposals of

 6 CCRs under Subtitle D rather than as a special

 7 hazardous waste under Subtitle C. We believe the

 8 regulation under Subtitle C will create a stigma

 9 for these wastes.

 10 Of even greater significance to us and

 11 the other Kansas utilities is a current Kansas

 12 state law that prohibits landfill disposal of any

 13 RCRA hazardous waste.

 14 If CCRs are regulated as a hazardous

 15 waste, even if EPA uses the term "special waste,"

 16 it is the KDHE's interpretation that current state

 17 law would prohibit landfill disposal and all

 18 current permitted CCR disposal activities would

 19 have to cease operation, and these wastes would

 20 have to be transported out of state for disposal

 21 and could end up affecting a low- income area

 22 nearby. The costs and other environmental impacts
 82

 1 of such a change in CCR disposal practice is

 2 staggering.

 3 While a Subtitle D regulatory approach

 4 is the preferred option, there's a need for some

 5 tweaking. The proposed regulations do not provide

 6 sufficient flexibility to consider alternative

 7 liners, leachate management methods, or final

 8 covers to accommodate variables in local

 9 conditions such as soil types, depth to

 10 groundwater, distance to surface water, and annual

 11 precipitation. The prescriptive one-size-

 12 fits-all approach unnecessarily ties the hands of

 13 regulators.

 14 We believe the best approach nationally

 15 is to develop Subtitle D regulations, including a

 16 required permitting program that can be

 17 administered by states, with sufficient

 18 flexibility to consider local conditions. While

 19 this approach would likely require a supplemental

 20 proposal, it will ensure EPA has enforcement

 21 authority it desires while avoiding the

 22 unnecessary and adverse implications of Subtitle
 83

 1 C.

 2 Thank you.

 3 MR. DELLINGER: 22.

 4 MR. LEDGER: Good morning. My name is

 5 Patrick Ledger. I'm chief operating officer of

 6 Arizona Electric Power Cooperative, AEPCO, a

 7 nonprofit generation transmission cooperative

 8 which provides wholesale power to six rural

 9 electric distribution co-ops serving customers in

 10 Arizona, California, and New Mexico.

 11 AEPCO owns and operates the Apache

 12 Generation (sic) Station in Cochise, Arizona, a

 13 sparsely populated area in southern --

 14 southeastern Arizona. The Apache Station fleet

 15 includes two coal- fired steam units and a number

 16 of gas-generation units.

 17 To support the coal-fired generation,

 18 AEPCO operates a combined -- a coal combustion

 19 waste disposal facility consisting of seven lined

 20 impoundments covering 285 acres. The facility,

 21 which became operational in 1995, was engineered

 22 to contain all of Apache Station's CCRs. AEPCO
 84

 1 also collects and markets 90 percent of its fly

 2 ash as beneficial-reuse products which has

 3 extended the life expectancy of the combustion

 4 waste disposal facility.

 5 AEPCO's facility is regulated by the

 6 Arizona Department of Water Resources, Dam Safety

 7 and Flood Mitigation Division as well as by the

 8 Arizona Department of Environmental Quality. Both

 9 agencies maintain rigorous compliance programs and

 10 conduct frequent inspections to ensure that

 11 applicable maintenance and safety standards,

 12 including groundwater monitoring, are followed.

 13 The EPA also recently affirmed the

 14 structural integrity and proper operation of the

 15 impoundments through an independent assessment.

 16 While we agree that the issue of unsafe

 17 CCR surface impoundment facilities must be

 18 addressed, lined properly engineered facilities

 19 that are rigorously regulated under state programs

 20 should not be placed in jeopardy by regulation

 21 that overreaches beyond its intended purpose.

 22 Imposing a new regulatory regime under
 85

 1 Subtitle C that would require rural rate payers,

 2 already suffering disproportionately from the

 3 effects of the recession, to pay millions more to

 4 replace or abandon a remote lined impoundment

 5 facility that operates in compliance with

 6 effective standards is unreasonable.

 7 For these reasons, Arizona Electric

 8 Power Cooperative supports the development of CCR

 9 regulation under the Subtitle D prime option. We

 10 believe that this regulatory option will best

 11 accomplish the objectives of ensuring that CCR

 12 disposal facilities, like those at Apache Station,

 13 will continue to be appropriately monitored to

 14 ensure they are operated in a safe manner.

 15 But unlike the Subtitle C approach, the

 16 D prime option would establish comprehensive

 17 environmentally sound regulations for coal ash

 18 disposal without imposing unreasonable and

 19 unnecessary costs on rural electric rate payers.

 20 Thank you for the opportunity to speak.

 21 MR. DELLINGER: Thank you. Number 23.

 22 MR. LEVENTHAL: My name is Joel
 86

 1 Leventhal. I'm here as a citizen, but I'm also a

 2 geochemist. I have a Ph.D. from the University of

 3 Arizona and more than 30 years' experience as a

 4 geochemist. I need to read some of this stuff,

 5 unfortunately.

 6 Coal averages about 10 percent ash. I'm

 7 going to say a few sort of geochemical things, but

 8 maybe it's time to say that. Coal ash is not dirt

 9 or soil. Coal ash is quite varied. Although the

 10 major and minor minerals are often similar to rock

 11 or dirt, the trace minerals and trace elements are

 12 not.

 13 In addition to that, different coals are

 14 different. Some coal ash is very -- is much

 15 higher in trace elements than others. For

 16 example, coals that are high in pyrite -- that's

 17 iron pyrite or iron sulfide -- generally have

 18 higher amounts of toxic elements than coals that

 19 are low in pyrite.

 20 Pyrite will often range from 1 to 3

 21 percent. So with coal ash being 10 percent of

 22 coal and pyrite being 1 to 3 percent of coal, you
 87

 1 can see that this is not normal soil or dirt.

 2 The trace elements may differ in

 3 abundance by a factor of 50 or more. So there's

 4 good coal ash and bad coal ash. I mean, that's

 5 sort of swinging it in funny ways. Elements such

 6 as vanadium, molybdenum, and germanium are often

 7 enriched in the coal organic matter whereas

 8 elements such as iron, cadmium, zinc, mercury,

 9 arsenic, and selenium are enriched in the pyrite.

 10 When the coal is burned, the CO2 leaves,

 11 but everything else stays behind. All those trace

 12 elements are still there. So they don't go away.

 13 They're around forever. The coal ash is then --

 14 depending on what happens to it, some of the trace

 15 elements are -- are subject to leaching, and some

 16 of them could be detrimental to people and the

 17 environment.

 18 Not even all coal -- even coal ash is

 19 not the same from the same coal. The bottom ash

 20 and the fly ash are quite different chemically

 21 often, and their trace and toxic elements are

 22 different by a factor of at least 15 in some
 88

 1 cases. So, again, unfortunately, these things all

 2 get mixed together and people just -- you just say

 3 "coal ash."

 4 Making one rule to fit all types of coal

 5 ash, both fly ash and bottom ash, seems like a

 6 gross over-simplification. One rule may not fit

 7 all, but erring on the side of long-term public

 8 health and environmental health is a reasonable

 9 choice.

 10 Because these chemical elements are

 11 around forever and can be leached forever, if

 12 they're near people and near water supplies,

 13 you've got a problem. If they're far away,

 14 they're not.

 15 I'm certainly in favor of recycling, and

 16 some coal ash that's clean enough and proves that

 17 it's clean enough and can't be -- and can't have

 18 elements leaching out of it should have some kind

 19 of a waiver, but in general I'm -- I'm in favor of

 20 Subtitle C so that we have, in general, good, real

 21 regulation but some way for clean stuff to be

 22 opted out and recycled.
 89

 1 Thank you.

 2 MR. DELLINGER: Number 24, and could

 3 Numbers 205, 26, 27, and 28 come forward.

 4 MR. WEEDA: My name is John Weeda. I'm

 5 the plant manager of Coal Creek Station at

 6 Underwood, North Dakota. Our Great River Energy

 7 is a nonprofit member-owned cooperative that

 8 operates two coal-fired plants in North Dakota.

 9 All of Great River Energy's generation

 10 and transmission fleet are ISO 14001-registered,

 11 which commits us to continual improvement of our

 12 environmental practices. This continual

 13 improvement process has driven our successful

 14 efforts to increase beneficial use of fly ash up

 15 to 92 percent and of bottom ash from our

 16 coal-fired facilities.

 17 Coal Creek Station, CCS, fly ash is

 18 treated as a product of the station and is known

 19 as some of the best in the industry for its

 20 quality and consistency. It is used extensively

 21 as replacement of portland cement in concrete. A

 22 variety of fly ash mixes with high content of fly
 90

 1 ash has been utilized throughout the upper Midwest

 2 for roads, bridges, structures, and parking lots.

 3 The beneficial-use program has resulted

 4 in an annual beneficial use of as much as 468,000

 5 tons of fly ash from CCS, and here -- in the past

 6 12 years decreased the demand for portland cement

 7 by over 10 million tons, thus avoiding at least 8

 8 million tons CO2 from that production.

 9 GRE agrees that development of federal

 10 regulations for CCRs should be under RCRA Subtitle

 11 D. GRE strongly opposes regulation of CCRs under

 12 RCRA hazardous waste program even if the CCRs are

 13 labeled as special waste.

 14 GRE believes that regulation of CCRs

 15 under Subtitle C would destroy the progress that's

 16 been made in making CCS ash a respected commodity

 17 in the marketplace. Any indication that fly ash

 18 is a hazardous waste under any circumstances would

 19 bring a stigma of liability concerns that most

 20 users would avoid and thus eliminate the use of

 21 CCS ash.

 22 In addition, there are liabilities
 91

 1 associated with a product that is deemed a

 2 hazardous waste when disposed. The impact on CCS

 3 fly ash alone is estimated to be 40 million over

 4 the next 10 years in addition to a stranded

 5 investment in excess of approximately $20 million.

 6 GRE fails to see the EPA's logic that a

 7 Subtitle C classification would increase sales by

 8 increasing disposal costs. There is no

 9 correlation between the cost of disposal and the

 10 demand for CCRs in the beneficial-use market.

 11 GRE has participated in research and

 12 contributed proactively to regulations

 13 administered by the State of North Dakota Health

 14 Department, provide proper design for disposal

 15 facilities in North Dakota. These include lining

 16 and effective management and monitoring of the

 17 landfills, and this applies to our stations in

 18 North Dakota.

 19 We're also concerned about the

 20 unintended consequences of employee safety of

 21 utilizing a hazardous classification.

 22 We support Subtitle D, and thank you for
 92

 1 your time.

 2 MR. DELLINGER: Number 205.

 3 MS. SOLIS: Hi. My name is Andrea

 4 Solis, and I am a Ph.D. student at the University

 5 of Colorado Denver, and my research is focusing on

 6 the use -- co-benefits of high volume fly ash

 7 concrete.

 8 During my literature review of fly ash

 9 concrete, I found that there's over 80 years of

 10 published research indicating the beneficial use

 11 of fly ash concrete. There has also been research

 12 showing that there is a reduction of leaching of

 13 heavy metals from fly ash if incorporated -- if

 14 fly ash is incorporated in concrete.

 15 But despite these 80 years of positive

 16 research, only about 41 percent of the total fly

 17 ash produced in the U.S. is used in fly ash

 18 concrete or for flowable fill in other

 19 applications.

 20 So I bring the following concerns as a

 21 concerned citizen and future engineer: Despite 80

 22 years of positive research, what value would the
 93

 1 research have if -- under Subtitle C or what use

 2 would it have in the future under Subtitle C.

 3 Also I feel that EPA -- it would be

 4 appreciative if EPA could provide a thorough

 5 explanation as to how stricter regulations on

 6 landfilling and hazardous material will prevent

 7 any leaching disasters in the future.

 8 And I thank you for your time.

 9 MR. DELLINGER: Number 26.

 10 MS. JAIMISON: My name is Joy Jamison.

 11 I'm speaking for Colorado Interfaith Power and

 12 Light. Our mission is to encourage diverse faith

 13 communities to actively care for God's creation.

 14 Thank you for the chance to comment today. We

 15 support Subtitle C, which would treat coal ash as

 16 hazardous waste.

 17 This is a moral and eco-justice issue.

 18 Coal ash disproportionately affects the poor.

 19 Right here in Denver in the Elyria neighborhood

 20 next to Xcel's Cherokee plant, Xcel parks railroad

 21 cars full of coal ash right across the street from

 22 private housing.
 94

 1 According to the EPA's own statistics,

 2 52 percent of coal ash sites have higher than

 3 average low-income families and 28 percent have

 4 higher than average minority populations. If coal

 5 ash is not regulated, the only recourse for

 6 individuals in these communities is citizen suits.

 7 No one there can afford to sue.

 8 Another concern is unencapsulated

 9 beneficial uses happening right now, such as using

 10 coal ash particles as fill for golf courses,

 11 playgrounds, and for fertilizer. Playgrounds

 12 where children will be playing in coal ash?

 13 Fertilizer, wind will blow it everywhere.

 14 According to EPA statistics, excess

 15 cancer risk for children drinking water

 16 contaminated with arsenic is as high as 1 in 50.

 17 Yet we're still storing coal ash with arsenic in

 18 unlined ponds. There must be similar risks in

 19 using coal ash for playgrounds and fertilizer.

 20 I have heard comments today about the

 21 costs of Subtitle C. In fact, if you do proceed

 22 with Subtitle C, the electricity costs will
 95

 1 increase less than 1 percent.

 2 If the misuse of coal ash is a moral

 3 issue, a bigger one is the continued use of coal

 4 itself. In 2006 coal provided 27 percent of the

 5 CO2 spewing into the atmosphere and helping to

 6 accelerate climate change.

 7 Then there are the downstream costs of

 8 burning coal that are not paid by industry; things

 9 like the cost of air pollution, greenhouse gases,

 10 water use, water quality, land use, energy

 11 security, coal combustion and mining wastes, and

 12 the accompanying health effects.

 13 These are paid for by those individuals

 14 primarily with low income, little education, and

 15 little influence. Another moral and eco-justice

 16 issue.

 17 I do not support the ongoing

 18 unencapsulated uses of coal ash. I do support

 19 Subtitle C treating coal ash as hazardous waste.

 20 Colorado Interfaith Power and Light

 21 opposes unencapsulated beneficial uses without

 22 significant additional research.
 96

 1 Thanks.

 2 MR. DELLINGER: Thank you. Number 27.

 3 MS. FRAINAGUIRRE: I am Frances

 4 FrainAguirre. I live in northwest Denver. I'm

 5 former president of the neighborhood association,

 6 but I'm also here as an individual citizen.

 7 I understand that the purpose of

 8 government is to protect the common good. There

 9 is no such thing as most companies policing

 10 themselves. Since profit is the name of the game

 11 in most businesses, or in all businesses for that

 12 matter, we need protection for the health of the

 13 common good.

 14 I've seen the results of companies that

 15 have made the almighty dollar their god without

 16 any concern for individual persons. They will not

 17 police themselves nor be transparent without

 18 regulation.

 19 I am here today to say that toxic coal

 20 ash needs to be designated as a hazardous waste.

 21 The EPA also needs to be transparent. I've worked

 22 with the EPA before on cleaning up a toxic waste
 97

 1 site in my neighborhood, and I know how difficult

 2 it was to work with the EPA; that it went push,

 3 push, push, push, push to get something done. So

 4 I also say that needs to happen.

 5 I grew up in a steel mill neighborhood

 6 in Chicago. I've seen the results of unregulated

 7 soot that the people in those neighborhoods got to

 8 breathe day in and day out.

 9 My own brother has mesothelioma due to

 10 General Mills' lack of provision and application

 11 of safety standards. Two of my sisters have

 12 cancer. In a generation where -- well, I'm saying

 13 a prior generation had no cancer at all.

 14 It seems that the bureaucratic red tape

 15 that keeps the EPA from informing those concerned

 16 about what's being done needs to be expedited.

 17 I've seen the EPA clean up toxic waste

 18 sites in northwest Denver, and I've known of their

 19 work in Globeville in northwest Denver. So I hope

 20 to see the EPA doing something with coal ash.

 21 Thank you.

 22 MR. DELLINGER: Number 28. And while
 98

 1 we're getting started with your testimony, could

 2 Number 29 and Number 206 and 207 come forward, and

 3 208.

 4 MR. CAWLEY: Good morning. My name is

 5 Bernie Cawley, and I represent the Colorado Ready

 6 Mixed Concrete Association. We represent the

 7 ready mixed concrete industry throughout the state

 8 and have producing members in almost every

 9 city/county area. We also have engineers and

 10 architects that are also members.

 11 Today you're going to hear from a number

 12 of different interested parties and a myriad of

 13 different topics that are going to be raised. I'd

 14 like to touch on only two.

 15 The specifying community, primarily

 16 architects and engineers, are the ones who

 17 typically make the decision on what building

 18 materials are used. With concrete it's quite

 19 common for these groups to specify the mix design.

 20 Since the review of CCRs was announced,

 21 our office has been deluged with calls from

 22 different architects and engineers throughout the
 99

 1 state asking, Is it safe to use a CCR on their

 2 projects.

 3 Despite our positive approach towards

 4 it, this whole group of specifiers is not doing it

 5 because they're afraid of the stigma of it being a

 6 hazardous material. They're also afraid of future

 7 liability. When you add the additional cost of

 8 trucking, handling, and storage of a hazardous

 9 material, very few are going to specify a CCR due

 10 to potential for the increased cost and primarily

 11 that future liability.

 12 The second topic is something called

 13 alkali silica reaction or ASR. ASR is caused by

 14 cement interacting with the silica, and many of

 15 the aggregates that are found in the state of

 16 Colorado -- almost all the aggregates here have

 17 it.

 18 The result is a rapid deterioration of

 19 concrete. So you use CCRs as a mitigating factor

 20 to stop this reaction. They're probably the most

 21 prevalent and the best means to mitigate ASR.

 22 So if it's labeled as a hazardous or
 100

 1 special material, it's doubtful the specifiers are

 2 going to use it. This is going to result in a

 3 number of different aggregates, another product

 4 for mitigation, or a low alkali cement or all

 5 three having to be shipped into Colorado from

 6 another state.

 7 This is going to result in a

 8 skyrocketing of costs of concrete and also the

 9 quality of concrete. So in this economy it's

 10 probably going to result in a number of different

 11 projects not being built; schools, roads, houses,

 12 et cetera.

 13 Thank you very much.

 14 MR. DELLINGER: Number 29.

 15 MR. AMME: Good morning. My name is

 16 Robert Amme. I'm a research professor at the

 17 University of Denver, and about 12 years ago we

 18 recognized that what is really needed in the area

 19 of sustainable development and sustainable growth

 20 is a need for lots of research and development

 21 activities, primarily research having to do with

 22 what we call environmental materials. Those are
 101

 1 materials that existed in the environment, many

 2 types of which are considered waste for

 3 profit-making business purposes.

 4 But we decided to take a hard look at a

 5 number of granular materials, including just a --

 6 fine materials coming from rock quarries, which

 7 are being underutilized, how to make them into

 8 useful products. And naturally we were led also

 9 to the area of coal ashes.

 10 Our laboratory is for the purpose of

 11 investigating how coal ashes can be combined with

 12 binders and made into useful products that can be

 13 used in industry and building industries.

 14 The R&D that we've done, most of the

 15 research has been supported by a number of

 16 entities, including the Department of Energy,

 17 various agencies of the DOE, the Colorado Advanced

 18 Materials Institute, the Public Service Company of

 19 Colorado. Several other utilities as well.

 20 We've made panels and slabs and blocks

 21 and bricks, some of which have been coal-fired --

 22 which have been fired to higher temperatures for
 102

 1 testing strength, and many of our materials then

 2 go out to the commercial testing laboratories to

 3 be sure that they will meet both strength and

 4 toxicity characteristic leaching procedure

 5 specifications.

 6 The ashes we've used have been very good

 7 in the sense that they're very low in contaminants

 8 of any kind.

 9 So my concern is principally that we

 10 don't condemn all ashes to being considered

 11 hazardous materials if one or two might be. We

 12 need R&D, and we need lots of it, and

 13 unfortunately, this is something that really needs

 14 EPA's attention, and hopefully we can solve some

 15 of the problems by -- economically, I should say,

 16 by selecting those materials that are safe enough

 17 to be used in the environment and to identify

 18 those that are not.

 19 Thank you.

 20 MR. DELLINGER: Number 206.

 21 MR. KINSEY: Good morning, and thank

 22 you. My name is Robert Kensey. I'm a retired
 103

 1 United Church of Christ minister. I am a retired

 2 high school teacher of economics and history, and

 3 I am the Green Party candidate for United States

 4 senate, and in the last election I received 50,000

 5 votes showing support for Green Party positions,

 6 and I speak for them today.

 7 As a clergyman, I remember that our

 8 famous ancestor Adam had the power to name things,

 9 and when you name something like water, it has

 10 three different forms; and steam can burn your

 11 skin, ice can heal a wound, and water is essential

 12 to our health -- clean water.

 13 Hazardous waste, it seems to me, applied

 14 to coal ash is applied in a certain form of that

 15 coal ash, and you have allowed in Bevill exception

 16 that it can be renamed to something else when it's

 17 properly changed into that form. That's fine.

 18 And that should solve all the problems concerning

 19 the business interests in using coal ash in a

 20 valuable recycled way.

 21 Electricity production must be at full

 22 cost pricing, and corporations prevent it from
 104

 1 privatizing profits and socializing costs. That

 2 is their deadly destructive game often.

 3 Arguments for continued coal burning are

 4 grounded in its cost-effectiveness compared to

 5 other forms of energy, but full priced -- full

 6 cost pricing of -- all of a sudden makes

 7 sustainable renewable energy much more attractive

 8 both in terms of planetary health and in terms of

 9 consumer cost.

 10 Only when the cost of responsible,

 11 long-term waste management is included can a true

 12 picture of real cost emerge.

 13 Subtitle C names the problem to be

 14 managed and thus creates the leverage to build

 15 full-cost pricing into electricity production.

 16 I'd like you to take that economic

 17 argument into consideration in your very valuable

 18 Subtitle C.

 19 Thank you very much.

 20 MR. DELLINGER: Number 207. Number 208.

 21 Is Number 207 in the room?

 22 MS. GOODMAN: Hello. My name is Lori
 105

 1 Goodman, and I'm a member of the Navajo Nation on

 2 the Navajo reservation, and I'm with the

 3 organization Dine Citizens Against Ruining Our

 4 Environment, and today I'm speaking for our

 5 members that live next to the 90 to 95 million

 6 tons of coal combustion waste in Fruitland, New

 7 Mexico, making it one of the largest toxic

 8 disposal in the U.S. This is from a report from

 9 the U.S. EPA's site visit from 2001.

 10 The way that -- you know, it blows in

 11 the wind. It impacts our water. And the process

 12 is, for those of you that don't know, after each

 13 16-hour shift 85 tons of coal ash is dumped into a

 14 mine pit. A foot of dirt is placed on it, and

 15 there's no compaction. And so, you know, no

 16 liners, no treatment system, and it's utilized to

 17 prevent leaching.

 18 According to National Research -- the

 19 National Academy of Science, CCW contains a

 20 mixture of heavy metal and other toxic

 21 constituents that pose public health and

 22 environmental concerns.
 106

 1 And in 2005 a preliminary evaluation of

 2 the potential for surface water quality impacts

 3 from CCW disposal at the Navajo mine was prepared

 4 by science and engineering technology application

 5 for submission to the National Academy of Science.

 6 The resulting report concluded that

 7 while available environmental monitoring data was

 8 highly deficient, the limited available data

 9 nonetheless demonstrated that water quality

 10 parameters for pH total dissolved solids, sulfite

 11 borium, selenium, and arsenic were at least three

 12 times greater.

 13 In 2000 the Navajo Nation EPA concerned

 14 about the potential health threat posed by CCW on

 15 the Navajo Nation requested that OSM impose

 16 additional control on CCW disposal practices at

 17 the Navajo mine. They requested control including

 18 requiring liners, collection system, groundwater

 19 monitoring, and fugitive dust control. OSM

 20 rejected Navajo Nation EPA request.

 21 So the health impacts is what we're

 22 talking about. When the wind blows, you know, it
 107

 1 blows all over the place, and I would invite

 2 mining people here, you know, to be -- to find

 3 themselves in the situation where the coal dust is

 4 blowing all over the place.

 5 So the ending result, in November 2009,

 6 the Chinle Indian Health Service received 110

 7 Navajo elementary students for the purpose of

 8 giving them the H1N1 shots. Only 40 of them were

 9 eligible for shots as they had underlying asthma

 10 and respiratory problems.

 11 An elementary school, Ojo Amarillo, a

 12 mile from the Four Corners Power Plant, children

 13 suffer in alarming numbers from asthma and

 14 neurological problems.

 15 Thank you.

 16 MR. DELLINGER: I'm going to take about

 17 a minute to figure who's here and not here. Betsy

 18 -- Number 30 and 31, and 32, are you here?

 19 UNIDENTIFIED SPEAKER: Yes.

 20 MR. DELLINGER: Okay. We're going to go

 21 with Numbers 30, 31, 32, and 33. Number 30.

 22 MR. BUSH: Thank you. My name is Ed
 108

 1 Bush, and I'm a lead accredited professional. As

 2 a lead accredited professional, I spend a great

 3 deal of my time working with design professionals

 4 to help them find environmentally friendly

 5 solutions to construction challenges.

 6 The benefits of using fly ash in

 7 concrete in Colorado are great. We substituted it

 8 for cement. We're substituting a waste product

 9 for a product that otherwise has to be

 10 manufactured at a great expense. So it's not only

 11 environmentally friendly because we're using a

 12 recycled material and replacing a new material,

 13 but it's cost-effective.

 14 In Colorado the aggregates that we have

 15 often react with leftover alkali in cement causing

 16 an alkali silica reaction that decreases the

 17 durability of concrete. Using fly ash in concrete

 18 helps eliminate the alkali silica reaction making

 19 concrete more durable.

 20 The EPA's own study shows that if fly

 21 ash is used to produce concrete, heavy metals such

 22 as mercury can't be leached out of it. So it's a
 109

 1 safe use of fly ash.

 2 If EPA decides to regulate fly ash as a

 3 hazardous material, I haven't found a single

 4 construction specifier who will be specifying

 5 concrete that contains fly ash simply because of

 6 liability reasons. Even if EPA says that concrete

 7 is a beneficial use, if they're also saying that

 8 it's hazardous material, construction specifiers

 9 aren't willing to take on that liability.

 10 In conclusion, if you want concrete to

 11 remain the environmentally friendly, durable

 12 product that it is today, please do not regulate

 13 fly ash as a hazardous material.

 14 Thank you.

 15 MR. DELLINGER: Thank you. Number 31.

 16 MR. KOSNETT: Good afternoon. My name

 17 is Michael Kosnett. I'm a physician specializing

 18 in occupational environmental medicine and medical

 19 toxicology. I'm an associate clinical professor

 20 at the University of Colorado Denver School of

 21 Medicine, the division of clinical pharmacology

 22 and toxicology. I'm also on the facility of the
 110

 1 Colorado School of Public Health. However, I'm

 2 appearing here today and my comments are not made

 3 on behalf of those institutions. They're my

 4 personal comments.

 5 I have been involved in the study of the

 6 hazards of arsenic for a number of years, and the

 7 reason briefly that I want to address the group

 8 today is that many of the health concerns and

 9 drivers for regulation of coal combustion waste

 10 emanate from the leading concern over the risk

 11 posed by arsenic, particularly the risk of cancer

 12 associated with the potential migration of arsenic

 13 from coal combustion waste into drinking water.

 14 A document that was released by EPA in

 15 April of 2010, The Human and Ecological Risk

 16 Assessment of Coal Combustion Wastes, identifying

 17 the risk from arsenic as being one of the greatest

 18 drivers or the most significant driver in

 19 regulation.

 20 I'd like to draw EPA's attention to the

 21 fact that the risks identified by arsenic in that

 22 document are, in fact, considerable underestimates
 111

 1 of the actual risks posed by arsenic. The key

 2 issue is that the slope -- cancer slope factor

 3 that was used in calculating the cancer risk was

 4 based on the IRIS -- current IRIS document. That

 5 document is based on the identification of arsenic

 6 solely as a cause of skin cancer. It was

 7 initially issued in 1984 and has not been

 8 subsequently revised.

 9 In issuing its revised arsenic and

 10 drinking water standard in 2001, EPA explicitly

 11 recognized that arsenic is a cause of lung cancer

 12 and bladder cancer, and the National Research

 13 Council recommended as well that arsenic should be

 14 regulated as a lung cancer and a bladder cancer

 15 risk.

 16 Most importantly and most significantly,

 17 the EPA science advisory panel issued a

 18 recommended slope factor of 25.7, considerably

 19 above 1.5, in it's February 2010 final draft

 20 toxicological review of inorganic arsenic. It is

 21 absolutely essential that the risks in EPA's coal

 22 combustion ash analysis be revised to reflect the
 112

 1 more up-to-date information which other branches

 2 of EPA clearly recognize.

 3 Thank you very much.

 4 MR. DELLINGER: Number 32.

 5 MR. CARROLL: Good afternoon. My name

 6 is Cory Carroll. I just drove down from Fort

 7 Collins. I'm a family doctor, board certified to

 8 practice in that city.

 9 I'm here supporting the more aggressive

 10 Subtitle C in the regulation of coal ash. A large

 11 part of my practice involve preventive medicine,

 12 and I educate my patients in methods to enhance

 13 their health and obviously avoid disease.

 14 Health cornerstones; good nutrition,

 15 clean air, clean water, of course, regular

 16 exercise. With this foundation my patients have

 17 the best opportunity to avoid disease and achieve

 18 long and fulfilled lives.

 19 Many parameters are the choice of the

 20 individual and those behaviors obviously will

 21 definitely impact health. However, an unhealthy

 22 environment is beyond their control, and exposure
 113

 1 to pollutants including heavy metals and toxins is

 2 extremely concerning to me as a medical physician.

 3 Our bodies are extremely complicated

 4 chemical plants. Microscopic chemicals, toxins

 5 that invade our bodies, be it through our lungs,

 6 gastrointestinal tract, or through the skin, will

 7 adversely affect our health. Even mild exposure

 8 of certain toxins, especially in young patients,

 9 can do great harm.

 10 As a physician I feel an absolute

 11 obligation to make sure my patients' environment

 12 is as clean as possible. This is critical not

 13 only for my current patients but more so for

 14 future generations.

 15 Since coal ash contains arsenic, lead,

 16 mercury cadmium, chromium, selenium, it is

 17 imperative that these known toxins and carcinogens

 18 are regulated and disposed of as safely as

 19 possible to minimize exposures to humans as well

 20 as the animals and other organs -- organisms that

 21 we may consume.

 22 Subtitle C will give the greatest
 114

 1 assurance of safe disposal of coal ash. Without

 2 Subtitle C of the RCRA, violations in disposing of

 3 the ash are very likely to occur, in my opinion.

 4 Contamination of aquifers is my greatest

 5 concern. Once this water, a very scarce resource

 6 in Colorado, is contaminated, it will be very

 7 difficult if not impossible to reclaim. It is

 8 imperative that the EPA step up and recognize the

 9 health of Americans will be best preserved with

 10 more aggressive regulation, i.e., Subtitle C of

 11 the coal ash disposal.

 12 Thank you.

 13 MR. DELLINGER: Thank you. Number 33.

 14 And while Jim Roewer is moving forward, could we

 15 have Numbers 209, 210, 211, and 212.

 16 MR. ROEWER: I'm Jim Roewer, executive

 17 director Utility Solid Waste Activities Group, or

 18 USWAG, an association of over 100 electric

 19 utilities and trade associations.

 20 We've been working cooperatively with

 21 EPA for nearly three decades supporting the

 22 agency's implementation of the Bevill amendment
 115

 1 for CCRs, and I appreciate the opportunity to

 2 speak today.

 3 Let me say at the outset that USWAG

 4 supports the development of federal regulation for

 5 CCRs under RCRA's Subtitle D nonhazardous waste

 6 program. The question is not whether to regulate

 7 but now to regulate.

 8 Having evaluated the alternatives

 9 proposed, the Subtitle D prime option, with

 10 appropriate adjustments, is the best path forward.

 11 Unlike the Subtitle C approach, D prime will

 12 enable EPA to establish an environmentally

 13 protective program without crippling beneficial

 14 use, imposing unnecessary costs on power plants,

 15 threatening jobs, and increasing electricity

 16 costs.

 17 Opponents of the Subtitle D option

 18 persist in incorrectly stating that this would

 19 merely preserve the status quo under which the EPA

 20 can only issue guidance. This is not correct.

 21 Under the Subtitle D option, EPA would

 22 issue federal regulations specifically designed
 116

 1 for CCR disposal units. These regulations would

 2 be directly enforceable by the states and the

 3 public under RCRA's citizen suit provision and

 4 violators would be subject to significant civil

 5 penalties.

 6 EPA would also retain its imminent and

 7 substantial endangerment authority to take action

 8 against any CCR unit that poses a risk to human

 9 health or the environment. Ask any utility that

 10 has been the subject of a RCRA citizen suit, with

 11 injunctive relief and civil penalties in the

 12 balance, whether it views these regulations as

 13 mere guidance. These are real regulations with

 14 teeth, and it is misleading to suggest otherwise.

 15 One of EPA's stated concerns with the

 16 Subtitle D option is its perceived lack of federal

 17 enforceability under this approach. However, EPA

 18 does have the authority to issue federally

 19 enforceable Subtitle D rules for CCRs; it simply

 20 is not using that authority.

 21 I refer EPA to the same RCRA provisions

 22 under which it issued federally enforceable
 117

 1 Subtitle D rules for municipal solid waste

 2 landfills. The first provision, Section 4010(c),

 3 directs EPA to develop Subtitle standards for

 4 facilities that may or may potentially receive

 5 household or conditionally exempt small quantity

 6 generator waste.

 7 A related provision, Section 4005(c),

 8 authorizes EPA to enforce these Subtitle D

 9 regulations in states that fail to adopt and

 10 implement the federal rules.

 11 CCR disposal facilities fall within the

 12 scope of EPA's authority under these provisions,

 13 and without any question may or have the potential

 14 to receive these wastes.

 15 The development of Subtitle D

 16 regulations under 4010 of RCRA offers a win-win

 17 for EPA and the public. While this approach would

 18 likely require supplemental proposals, it will

 19 assure that the agency gets it right, providing

 20 the agency with the enforcement authority it

 21 desires while avoiding the unnecessary and adverse

 22 implications of Subtitle C.
 118

 1 There is simply no reason for EPA to

 2 pursue the Subtitle C approach when it can develop

 3 federally enforceable rules under the less

 4 controversial, yet equally protective, Subtitle D

 5 nonhazardous waste program.

 6 Thank you.

 7 MR. DELLINGER: Number 209.

 8 MS. FRAZIER: Good afternoon. Thank you

 9 for allowing me to speak here at the hearing. My

 10 name is Anna Marie Frazier, and I'm from Dilkon,

 11 Arizona, from the Navajo Nation. I'm a member of

 12 the Dine, indigenous peoples of this country.

 13 It's time for our government -- our --

 14 I'm getting lost here. It's time to make a

 15 change. Our government -- the U.S. government and

 16 the corporations who put money into the political

 17 leaders, we need to make a change. They need to

 18 make a change in the source of energy for our

 19 country.

 20 Fossil fuel development is hazardous to

 21 our human health, to our environment. On our

 22 native land within the four sacred mountains,
 119

 1 production of coal started in the 1950s and the

 2 early 1960s. We have been living under a cloud of

 3 pollution for the past 50 years.

 4 And coal ash and pollution from the

 5 power plants have been emitting CO2 NOx, selenium,

 6 and mercury on our lands for all these years, and

 7 there were about -- there are two large coal mines

 8 on our Navajo land, and there were three large

 9 power plants running daily.

 10 And in the 19 -- early 1950s and 1960s

 11 there were no illnesses on our lands such as

 12 asthma, heart disease, and cancer and diabetes,

 13 but after 50 years of fossil fuel development on

 14 our land, the health impacts is now very evident.

 15 We have asthma, and our children are not pulling

 16 -- some of them are pulling oxygen tanks around,

 17 and the elders are doing the same. And there are

 18 many children that are being born with birth

 19 defects.

 20 People that have been living near the

 21 coal mines and the power plants have lost many

 22 livestock because of the runoffs from the
 120

 1 wastewater.

 2 And how and why did EPA ignore the vast

 3 contribution to health impacts caused by coal ash

 4 all these years? It's time to change regulation,

 5 to regulate stricter and more stringent monitoring

 6 policies on coal ash.

 7 Fossil fuel -- we are a living proof --

 8 our land is living proof of what -- the hazardous

 9 waste from fossil fuel development, and it's

 10 hazardous to our health, to our -- to all living

 11 beings and all the environment here in our

 12 country.

 13 Thank you.

 14 MR. DELLINGER: Thank you. Number 210.

 15 MS. BENALLY: Thank you, people, EPA,

 16 Sierra Club, for allowing us to come here to bring

 17 before you the problems that we live with. And in

 18 my community of Black Mesa, Arizona, we have coal

 19 mining that has been operating since 1967, and

 20 there is no such thing as clean up or monitoring

 21 the dump that we live in.

 22 Our air quality is very, very bad, and
 121

 1 the health impacts of the community and the

 2 environment is very bad. So I believe that

 3 America needs to change its ways in energy

 4 consumption because there is no such thing as

 5 clean coal or uranium.

 6 They are unsafe. They are

 7 unpredictable, and as you know, the spill that has

 8 been taking place, you know, in Tennessee and then

 9 currently in the Gulf of Mexico, again this

 10 morning, there is another explosion of the oil

 11 well.

 12 So you know, America's greed needs to

 13 change, because the policy makers in Washington,

 14 DC, and its regulatory agency really don't exist

 15 in Indian country. So these things need to be

 16 changed.

 17 And with the Navajo Nation it allows all

 18 the pollution to be unregulated and more energy

 19 companies to come and destroy the land, and that's

 20 not what we're about.

 21 You know, the climate issue right now is

 22 a big question, and why are we talking about what
 122

 1 are we going to do with the sludge from the coal.

 2 There's no place to put it. Just like the

 3 uranium. There's no plans in America where these

 4 storage facilities will be.

 5 You've been pushing these wastes on

 6 communities that don't need it, like the brown

 7 fields throughout the country, in Indian country

 8 especially, we don't need that. We don't want it,

 9 no more coal development across this nation

 10 because of the climate issue.

 11 So you have to change your remedies.

 12 It's not all about your money only. It's not all

 13 about your greed only. It's about the survival of

 14 the planets. Do we want this planet or not, you

 15 know. So you didn't buy America, America. You

 16 just stole it from us. Now you're killing it, and

 17 it needs to be stopped.

 18 Thank you.

 19 MR. DELLINGER: Number 211.

 20 MR. WATAHAMIGIE: Good afternoon. I am

 21 here to defend what I believe is wrong and to

 22 protect what is right. I am here to represent the
 123

 1 Blue Star Kachinas. As a nationalism (sic)

 2 received from its birthplace, so will the

 3 unifactical capitalistic epicism that are aimed --

 4 that are aimed at the indigenous country and its

 5 land and its pristine waters.

 6 We feel that if we are to make brown

 7 laws (sic), that they are to make universal

 8 indigenous laws to protect the stars, to protect

 9 every elementary last matter that exists, to

 10 sustain our survival.

 11 We are based on anthropocentric beliefs

 12 that are nature centered, that is God being, and

 13 we believe that we can all together reliantly

 14 create and cocreate a world that is clean, the

 15 water that is clean, the soil that is clean from

 16 which we were created.

 17 And we are asking only that this world

 18 needs to be loved just as I have loved the world,

 19 and I am not going allow any more nuclear epicism,

 20 any of the indigenous world.

 21 Thank you.

 22 MR. DELLINGER: Could you state your
 124

 1 name with the record?

 2 MR. WATAHAMIGIE: My name is Bluestar

 3 Watahamigie. I am from the Grand Canyon. Thank

 4 you.

 5 MR. DELLINGER: Thank you. Number 212,

 6 and while Number 212 is coming up, can we have

 7 Numbers 213, 214, and 216.

 8 MR. TODD: Hi. I'm Sean Todd. I'm

 9 speaking on behalf of the Boiler Slag Consortium.

 10 All coal combustion residues are not created equal

 11 or at least not environmentally equal. There is

 12 flue gas desulfurization material, bottom ash, fly

 13 ash, and boiler slag.

 14 Boiler slag is created at the bottom of

 15 the furnace and is quashed with water, making it

 16 inert, very low leachability, a Mohs hardness of 6

 17 plus, and environmentally benign.

 18 Two of our speakers earlier today,

 19 retired geochemist Ph.D., Dr. Joel Leventhal,

 20 said, Don't lump all hazardous waste materials

 21 into the same category. Another Ph.D. said don't

 22 condemn all ashes to be hazardous if they are,
 125

 1 indeed, different.

 2 Boiler slag is different. It has

 3 different chemical and physical properties than

 4 other coal combustion residues.

 5 I would like to directly address some

 6 allegations that were made at the Arlington,

 7 Virginia, meeting on Monday, specifically

 8 regarding unencapsulated use of boiler slag.

 9 It was said there that the abrasive

 10 application of boiler slag released harmful

 11 hazardous waste airborne pollutants. We would

 12 like to submit to the public docket, which we will

 13 do in the Dallas meeting, an independent

 14 third-party study that shows this to be factually

 15 inaccurate. And we'd be happy to supply that to

 16 the docket and to the -- to the written comments,

 17 an independent third-party laboratory in

 18 Minnesota.

 19 I just encourage EPA to look hard at the

 20 scientific data; that it doesn't make sense nor is

 21 it effective public policy to lump in

 22 environmentally benign boiler slag with other --
 126

 1 other material that may be or may not be hazardous

 2 waste.

 3 And we -- we just encourage you that

 4 sometimes economic growth and protection of the

 5 environment can work hand in hand in the case of

 6 boiler slag, which is used in 80 percent of all

 7 roofing shingles and road surface materials and in

 8 abrasives.

 9 Thank you.

 10 MR. DELLINGER: Thank you. Number 213.

 11 MR. BENZEL: Thank you. I'm the

 12 reverend Cliff Benzel and a member of the board of

 13 directors of Colorado Interfaith Power and Light,

 14 an organization made up of members of faith

 15 communities whose goal is to encourage behaviors

 16 that enhance our ability to live healthy,

 17 bountiful lives in an environmentally friendly

 18 world.

 19 We are here today to call to the

 20 environmental EPA to exercise its policy and

 21 regulatory responsibility to protect the health

 22 and welfare of the public for the -- from the
 127

 1 polluting effects of coal ash.

 2 We come as people of faith who believe

 3 that the earth is the Lord's and the fullest

 4 thereof. We have all been given the

 5 responsibility to care for the earth as stewards

 6 for the benefit of humankind both now and into the

 7 future.

 8 When environmental catastrophes do

 9 strike, people of faith are always among the first

 10 responders. Caring for and protecting creation

 11 and vulnerable people is central to all of the

 12 many faith traditions of our land.

 13 But when is responsibility not enough?

 14 Are these -- responding not enough? Are these

 15 disasters that could have been prevented?

 16 Congregations of many faiths are joining together

 17 and demanding better stewardship of the

 18 environment in the first place.

 19 This often puts us in conflict with

 20 those who use the earth as a dumping ground for

 21 toxic materials, which are byproducts of our

 22 modern society. The scientific evidence is clear
 128

 1 that coal ash is a dangerous substance. As long

 2 as it is produced, it must be disposed of in ways

 3 that eliminate any contact with humankind, whether

 4 directly or through contamination of water

 5 resources from leaching of toxic chemicals into

 6 potential potable water or the general food

 7 supply.

 8 The proposed Subtitle C seems to us to

 9 be the best option to move us towards reduction of

 10 the hazardous waste impact of coal ash.

 11 The coal industry will argue that we all

 12 benefit from less costly energy, but they ignore

 13 the human cost of poor health which is often --

 14 with its often deadly results. Further, these

 15 impacts fall more heavily on those who are least

 16 able to mitigate against poor health; namely, poor

 17 people and children.

 18 We will never know the full cast -- cost

 19 of these health concerns, but to ignore them in

 20 the economics of coal-fired energy production is a

 21 serious mistake.

 22 People of faith across the land are
 129

 1 demanding better oversight of coal ash in America.

 2 The Reverend Sally G. Bingham, canon for the

 3 environment in the Episcopal Diocese of California

 4 in San Francisco says, "We treat the environment

 5 now and will define the kind energy we leave for

 6 future generations."

 7 We support Subtitle C.

 8 MR. DELLINGER: Thank you. Number 214.

 9 MS. HENDRICKS: My name is Melissa

 10 Hendricks. I'm here representing the American

 11 Coal Ash Association. The U.S. EPA created the

 12 Resource Conservation Challenge. This program

 13 made recycling byproducts a national priority.

 14 More than 135 million tons of coal

 15 combustion residuals were produced in 2008 making

 16 these materials our second largest industrial

 17 byproduct stream. Today 45 percent are recycled.

 18 If coal ash is labeled a hazardous

 19 waste, the EPA will destroy one of America's

 20 greatest recycling success stories. With the

 21 threat of Subtitle C regulation, the EPA appears

 22 to have forgotten a national priority.
 130

 1 The EPA appears to have forgotten years

 2 of productive partnership. The EPA appears to

 3 have forgotten decades of sound scientific

 4 research that has proven these materials are safe

 5 when properly managed.

 6 Any euphemism applied to the material

 7 such as "special" does not make the stigma go

 8 away. If it is legally hazardous, the negative

 9 perception will remain. For a consumer making the

 10 choice between a hazardous and nonhazardous

 11 product, the choice is clear.

 12 Markets for the materials will be

 13 destroyed because of the fear of lawsuits, the

 14 costs for managing the materials, and because of

 15 the stigma.

 16 The U.S. EPA reassures small businesses,

 17 "We support recycling. We support you." Yet we

 18 have witnessed firsthand how quickly the EPA's

 19 commitments can change.

 20 If recycling industrial materials is a

 21 national priority, then why has the agency

 22 forgotten decades of sound scientific research?
 131

 1 Why has the agency forgotten the significant

 2 progress made toward recycling these materials?

 3 The Region 9 EPA headquarters here in

 4 Colorado were constructed use coal combustion

 5 residuals. Has the agency forgotten the

 6 environmental that come with recycling coal

 7 combustion residuals?

 8 We can all agree that the spill in

 9 Tennessee is not acceptable. A Subtitle D

 10 regulation will address the problem more quickly

 11 than a Subtitle C regulation. The agency has

 12 enforcement ability, even with a Subtitle D

 13 regulation.

 14 The EPA made a commitment. The EPA has

 15 research to support its commitment. Please follow

 16 through with your commitment. Please continue to

 17 support recycling and coal combustion residuals.

 18 Please do not enact a rule that will be hazardous

 19 for Americas.

 20 Thank you.

 21 MR. DELLINGER: Number 215.

 22 MR. HARVEY: My name is Kevin Harvey. I
 132

 1 am here as a citizen of Big Sur, California, and

 2 for the support of my unborn child, which will

 3 soon be a new generation here. I'm also in

 4 support of Subtitle C, heavy regulation of coal

 5 ash as a toxic waste.

 6 There is a native American proverb that

 7 we should consider the impact of every decision we

 8 make on the next seven generations. We've seen an

 9 inkling of the kind of disaster that can occur

 10 with coal ash in Tennessee Valley, and we need to

 11 prevent future disasters of toxic and carcinogenic

 12 substances leaching into our environment.

 13 We've also seen the effects of other

 14 toxics like formaldehyde and such in Chinese

 15 drywall. We don't need a repeat of any more toxic

 16 chemicals leaching into our water and air from

 17 untested uses of coal ash or flash in any public

 18 uses, especially wallboard and concrete.

 19 I agree with the quote from Lisa Jackson

 20 at the EPA that the time has come for common sense

 21 national protections to ensure the safe disposal

 22 of coal ash.
 133

 1 We are proposing strong steps to address

 2 the serious risk of groundwater contamination and

 3 threats to drinking water, and we're also putting

 4 in place stronger safeguards against structural

 5 failures of coal ash impoundments. The health and

 6 environment of all communities must be protected.

 7 In addition these productions will

 8 encourage further investment in renewable energy

 9 which will benefit the physical and financial

 10 health of our children and our environment for

 11 future generations to come.

 12 Thank you.

 13 MR. DELLINGER: Number 216.

 14 MS. HIRSCHMUGL: I'd like to start by

 15 thanking you for allowing to us have a public say

 16 in this matter. We really appreciate it. My name

 17 is Sarah Hirschmugl. I'm in support of Subtitle

 18 C, which is heavy regulation of coal ash as a

 19 toxic substance. It would be best if it was not

 20 produced altogether, but if so, I believe heavy

 21 management is imperative.

 22 As far as recycling coal ash goes, I do
 134

 1 believe that there are three Rs, as we learned

 2 from elementary school, and they are reduce,

 3 reuse, and recycle. So recycling is important,

 4 but I believe that reduction is the first step in

 5 that. And if we're able to regulate the coal ash,

 6 we could focus more on the reduction than on the

 7 recycling of a toxic material.

 8 Solid matter is connected through

 9 liquids and gases. We have this vague perception

 10 that everything is separate, and not everything is

 11 separate, and if we continue to put toxic

 12 materials into the things that we live in and that

 13 we create communities with, these toxic materials

 14 will eventually affect us.

 15 And it may not be right away. It may be

 16 next generation or two generations. I think that

 17 we've all seen it happen, and it's time to put the

 18 facts that we know into our everyday lives and

 19 take a step to begin doing the right thing.

 20 Thank you.

 21 MR. DELLINGER: We're going to take a

 22 lunch break, and we'll reconvene at 1 -- I guess 1
 135

 1 o'clock, because we'll have the introduction then,

 2 and then speakers will begin at 1:15. So we'll

 3 reconvene at 1 o'clock. I believe we've captured

 4 everybody who walked in for the morning session.

 5 (Whereupon, at 12:31 p.m., a

 6 luncheon recess was taken.)

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 136

 1 A F T E R N O O N S E S S I O N

 2 (1:06 p.m.)

 3 MS. DEVLIN: Good afternoon, and thank

 4 you for attending this afternoon session of our

 5 public hearing on regulation of coal combustion

 6 residuals that are disposed of in landfills and

 7 surface impoundments.

 8 Again, I would like to take the

 9 opportunity to thank you for taking time out of

 10 your busy schedules to come and comment on the

 11 proposed rule, and we certainly look forward to

 12 receiving all of your comments.

 13 As stated this morning, this is the

 14 second of seven public hearings that will be

 15 conducted. We had a very successful hearing in

 16 Washington, DC, on Monday of this week, and our

 17 remaining hearings are scheduled for Dallas,

 18 Texas, which is next week; Charlotte, North

 19 Carolina; Chicago, Illinois; Pittsburgh,

 20 Pennsylvania; and Louisville, Kentucky.

 21 My name is Betty Devlin, and I'm the

 22 associate director of Materials Recovery and Waste
 137

 1 Management Division in EPA's Office of Research

 2 Conservation and Recovery, and I will be chairing

 3 this afternoon's session of the public hearing.

 4 And with me this afternoon are Laurel Celeste,

 5 Steve Hoffman, and Jesse Miller.

 6 And before we begin the public hearing,

 7 again, I am not going to give you the brief

 8 description of the proposed rule because I think

 9 everybody heard that this morning, but I would

 10 like to go over some logistics of how we will run

 11 the hearing this afternoon.

 12 Speakers, if you preregistered, you were

 13 given a 15-minute time slot in which you're

 14 scheduled to give your three minutes of testimony,

 15 and to guarantee that spot, we've asked that you

 16 sign in 10 minutes before your slot and actually

 17 be in the room 10 minutes before your slot.

 18 Speakers, you were given a number when

 19 you signed in, and this is the order in which you

 20 will speak and the order in which I will call you.

 21 I will call speakers to the front row on

 22 my right, your left, and when your number is -- I
 138

 1 will call you four at a time, and when your

 2 numbers are called, if you would move there, and

 3 when your number is called, move directly to the

 4 podium, and please state your name and affiliation

 5 for our court reporters. And we might have to ask

 6 you to spell your name if that's necessary.

 7 And, again, because we have a large

 8 number of folks signed up to provide testimony

 9 today and to be fair to everyone, testimony is

 10 limited to three minutes. We will be using an

 11 electronic timekeeping system, and we'll also hold

 12 up cards to let you know when your time is getting

 13 low.

 14 When we hold up the first card, you will

 15 have two minutes left. We will hold up the second

 16 card at one minute. When we hold up the third

 17 card, you'll have 30 seconds left, and when the

 18 fourth card is held up, your time is up, and we

 19 really need you to stop speaking.

 20 When you complete speaking, we'll ask

 21 you to return to your seat and remain there until

 22 all the members of your group have completed their
 139

 1 testimony.

 2 If you have written comments, we'll ask

 3 them, once your group is finished, we'll ask you

 4 to place it in the box, which is in front of our

 5 court reporters' cable.

 6 We're not going to be answering

 7 questions on the proposal today. However, from

 8 time to time some of us on the hearing panel may

 9 ask a question to clarify some of your testimony.

 10 As I just mentioned, if you brought a written copy

 11 of the comments you're giving, again the box on

 12 the floor. If you are only submitting written

 13 comments today, we ask that you put them in the

 14 box by the registration desk.

 15 And if you have additional comments,

 16 please follow the instructions on the yellow form

 17 and submit them to us by November 10, 2010.

 18 Again, our goal is to ensure everyone

 19 who's come today to present testimony is given an

 20 opportunity to provide comment. To the extent

 21 allowed by time constraints, we will do our best

 22 to accommodate speakers who have not
 140

 1 preregistered, and at this morning's session, we

 2 were able to accommodated all those who came. So

 3 I'm hopeful we can do the same this afternoon.

 4 Today's hearing is scheduled to close at

 5 9:00, but we will stay later if necessary, but if

 6 for some reason we don't have time to -- you don't

 7 have time to present your comments, we have

 8 comment sheets in the lobby, and we can -- you can

 9 provide a written statement in lieu of oral

 10 testimony, and the written statements will be

 11 collected and entered into the docket on the

 12 proposed rule just as if you had presented them

 13 orally.

 14 And if anyone in the room would like to

 15 testify but has not registered, we ask you to go

 16 out to the registration table and sign up to do

 17 so. We are likely to take occasional breaks if

 18 needed, but we will shorten or eliminate them in

 19 order to accommodate as many folks as we can

 20 today.

 21 And again, if you have a cell phone, I'd

 22 appreciate it if you'd turn it off or turn it to
 141

 1 vibrate, and if you need to step out of the room,

 2 just step out of the room and take phone calls.

 3 Again, we ask for your patience as we go

 4 forward this afternoon. We might make some minor

 5 adjustments as the day progresses. With that,

 6 I'll try to get started.

 7 And so I'm going to ask Numbers 34, 35,

 8 36, and 37 to come to the seats up here. And

 9 Number 34, please.

 10 MR. ADAMS: My name is Thomas Adams.

 11 I'm the executive director of the American Coal

 12 Ash Associate headquartered here in the Denver

 13 area. Thank you for the opportunity to

 14 participate in today's hearing.

 15 In its current co-proposals, the U.S.

 16 EPA has expressed strong support for the continued

 17 beneficial use of coal combustion products.

 18 Inclusion in cement production, concrete mixtures,

 19 wallboard, and various other products has been

 20 excluded from the Subtitle C regulatory scheme for

 21 disposal of coal combustion residues.

 22 EPA has recognized, and rightly so, that
 142

 1 disposal of all CCR is not in the best interest of

 2 our society. The more safe recycling that occurs

 3 helps mitigate demand for disposal capacity and

 4 the resources required to damage CCR disposal.

 5 The American Coal Ash Association shares

 6 this view. Since its founding in 1968, the ACAA

 7 has been encouraging beneficial use of coal

 8 combustion products in ways that are

 9 environmentally safe, commercially competitive,

 10 and contributing to a more sustainable society.

 11 However, there is a fundamental problem

 12 with the continued recycling of coal combustion

 13 products under the Subtitle C proposal to call CCR

 14 destined for disposals special waste. Subtitle C

 15 is intended for management of hazardous waste.

 16 Therefore, anything managed under Subtitle C is

 17 actually a hazardous waste no matter what attempt

 18 is made to relabel the waste.

 19 We believe that markets will reject

 20 products which include a material considered

 21 hazardous waste.

 22 Virtually all of the CCPs recycled into
 143

 1 beneficial use face competition from alterative

 2 products which do not bear the stigma of being

 3 regarded as a hazardous waste. The same delivery

 4 truck that happens to bypass a concrete plant and

 5 unload in a landfill is hauling a material with

 6 identical chemical characteristics that make it

 7 hazardous in the landfill but just fine in a batch

 8 of concrete.

 9 Marketers of the competitive products

 10 are already taking advantage of this scenario to

 11 gain market share at the expense of coal

 12 combustion products today. The basic message is

 13 the same. My products do not contain a hazardous

 14 waste. Do yours?

 15 EPA is continued -- says continued

 16 beneficial use will not suffer under the Subtitle

 17 C scheme. After all, the agency has listed 13

 18 other wastes under Subtitle C and the listing has

 19 not discouraged continued recycling of those

 20 products.

 21 In order to test this statement, I

 22 checked around my home and asked colleagues to do
 144

 1 the same. It seems that we do not keep black

 2 liquor pulping furnaces, spent sulfuric acid, coke

 3 oven byproducts, dust from electric arc furnaces,

 4 or any of the other listed wastes in our garages

 5 or basement.

 6 However, coal combustion products can be

 7 found on the roofs and in the wallboard of our

 8 homes, in the concrete foundations and slabs of

 9 our homes, and in the carpet backing we walk on.

 10 Clearly homeowners can reach out and touch

 11 products containing CCPs unlike any of the listed

 12 wastes that EPA cites as examples of consumer

 13 behavior. Rational consumers will turn away from

 14 anything containing a hazardous waste.

 15 The stigma of a hazardous waste rule of

 16 any kind is real and operative in markets today

 17 before we even have a final rule.

 18 We'd like to thank you today for the

 19 opportunity and hope that EPA will make its

 20 decision based on science, not political science

 21 or science fiction.

 22 MS. DEVLIN: Thank you. Number 35,
 145

 1 please.

 2 MR. DAVIS: Good afternoon. My name is

 3 Scott Davis. I'm the director of environmental

 4 policy and programs for Arizona Public Service

 5 Company. I'm also the chair of the Utility Solid

 6 Waste Activity Group. APS is an investor-owned

 7 utility with headquarters in Phoenix, Arizona. In

 8 addition to nuclear, solar, wind, and gas-fired

 9 generation, APS owns and operates two coal-fired

 10 power plants, and thus will be directly impacted

 11 by the final rule, and I appreciate the

 12 opportunity to comment.

 13 Let me begin by stating that APS

 14 supports the development of federal regulations

 15 for CCRs under RCRA's Subtitle D nonhazardous

 16 waste program, and we believe that Subtitle D

 17 prime is the appropriate option. Not only will

 18 this approach create an environmentally protective

 19 program for coal ash disposal, it will do so

 20 without crippling beneficial use and imposing

 21 unnecessarily -- unnecessary regulatory costs.

 22 A concern we have about both Subtitle D
 146

 1 and D prime options, however, is the lack of any

 2 mechanism for states to step in and administer the

 3 regulations. Many states, including Arizona, have

 4 regulatory programs in place that meet or exceed

 5 the Subtitle D standards in EPA's proposal.

 6 So rather than throw the proverbial baby

 7 out with the bath water, APS encourages EPA to

 8 allow qualified state programs to administer

 9 federal Subtitle D rules.

 10 In Arizona, coal ash disposal units are

 11 regulated under the Department of Environmental

 12 Quality Aquifer Protection Program and the

 13 Department of Water Resources Dam Safety Program.

 14 Working in tandem, these programs impose stringent

 15 requirements to ensure the environment and public

 16 safety are protected.

 17 I'd also like to comment on our

 18 opposition to the Subtitle C option and point out

 19 that regulating CCRs as hazardous waste would have

 20 a devastating impact on beneficial use, driving

 21 more ash into hazardous waste landfills and very

 22 quickly overwhelming existing disposal capacity.
 147

 1 There are currently no permitted

 2 hazardous waste landfills in Arizona.

 3 Consequently, a Subtitle C regulatory program

 4 would place an enormous burden on the state to

 5 permit adequate capacity to handle the volumes of

 6 CCRs generated in meeting the state's energy

 7 needs.

 8 The last attempt to permit a hazardous

 9 waste landfill in Arizona drew opposition, and the

 10 landfill was never allowed to operate. If the

 11 state is unable to permit new landfills, the

 12 state's utilities would be forced to ship CCRs out

 13 of state, assuming capacity was available

 14 elsewhere.

 15 In conclusion, there are simply no sound

 16 environmental or economic reasons to pursue a

 17 Subtitle C approach when the Subtitle D prime

 18 option could be tailored to provide federal

 19 enforceability under the same RCRA provisions EPA

 20 used to establish the Subtitle D rules for

 21 municipal solid waste landfills.

 22 These rules, implemented by the states
 148

 1 and backed by direct EPA enforcement authority,

 2 offer the same degree of protection without the

 3 attendant regulatory and cost burdens associated

 4 with Subtitle D.

 5 Thank you for your consideration.

 6 MS. DEVLIN: Thank you. Number 36,

 7 please. Number 37.

 8 MR. COSS: Good afternoon. My name is

 9 Terry Coss. I'm the environmental director for

 10 Xcel Energy responsible for coal ash management at

 11 our four operating companies. I'm also a licensed

 12 professional engineer.

 13 Xcel Energy provides electric service to

 14 3.4 million customers and eight western and

 15 midwestern states including Minnesota and

 16 Wisconsin, the Dakotas, Colorado, Texas, and New

 17 Mexico. We have many concerns regarding EPA's

 18 proposal, but I will focus on five issues today.

 19 First, we strongly oppose regulation of

 20 coal ash disposal on RCRA C. This approach is

 21 unnecessary, and we believe EPA has seriously

 22 under- estimated the negative consequences. We
 149

 1 support the more reasonable D prime option which,

 2 with certain modifications, would allow

 3 well-designed and well- operated surface

 4 impoundments to remain in use.

 5 Second, we urge EPA to recognize the

 6 need for flexibility in liner designs. We operate

 7 in states with very different climates and

 8 geologies, such as Minnesota and Colorado. We've

 9 demonstrated to our regulators that alternate

 10 designs can provide effective protection at lower

 11 costs. Any final rule should allow for the use of

 12 alternate designs that meet applicable performance

 13 standards.

 14 Our third concern is that EPA's proposal

 15 discounts the important role that many states play

 16 today. Our states are very active in our landfill

 17 and pond operations, with programs that include

 18 permits and operating plans, inspections, and

 19 requirements for closure. State engineers and

 20 geologists and hydrologists are in the best

 21 position to implement such programs.

 22 To avoid duplication, we urge EPA to
 150

 1 allow states with effective programs to continue

 2 to administer them under Subtitle D. Federal

 3 efforts should focus on a few states that may need

 4 improvement.

 5 My fourth comment concerns the negative

 6 impact of the RCRA C rule on utilization. We have

 7 several power plants where almost all of the ash

 8 is beneficially used. Under RCRA C rule, we could

 9 see an immediate drop in market demand for this

 10 ash due to increased liability concerns and the

 11 stigma of a hazardous waste listing.

 12 Indeed, we believe concern over a future

 13 RCRA C rule has already caused fly ash utilization

 14 at one plant to drop from a planned 100 percent to

 15 zero. This ash now goes to a commercial landfill.

 16 My final comment concerns the negative

 17 impact of RCRA C rule on disposal capacity. The

 18 commercial disposal facilities we rely on today

 19 would no longer be able to accept our ash, and the

 20 notion that anyone can quickly and easily build

 21 new disposal capacity is simply not realistic.

 22 In one case, we've been trying to build
 151

 1 a new ash landfill for over 10 years. Despite

 2 having an approved environmental impact statement

 3 from the state confirming that both the site and

 4 design are safe, the project continues to be

 5 delayed due to local opposition.

 6 For these reasons and others, we urge

 7 EPA not to regulate coal ash disposal under RCRA

 8 C.

 9 Thank you.

 10 MS. DEVLIN: Thank you. Numbers 38, 39,

 11 40, and 41, please.

 12 MR. SCOTT: My name is Mike Scott, and

 13 I'm here on behalf of the Montana Sierra Club, and

 14 we strongly support the implementation of

 15 regulations under Subtitle C.

 16 In Montana, coal is exempt from

 17 regulation. Our state has continually failed to

 18 protect Montanans from the hazards -- the very

 19 real hazards posed by coal ash. For 30 years the

 20 ash ponds in PPL's Colstrip Power Plant have

 21 leaked into the groundwater, and only after

 22 citizens sued did our state entertain the idea to
 152

 1 take action.

 2 Their proposal to mitigate the damages

 3 essentially required more paperwork and does not

 4 include actually fixing the leaking ash ponds.

 5 PPL has said estimated cost of $30 million to fix

 6 the ash ponds is too much. But months before

 7 making that statement, PPL donated $20 million to

 8 have a soccer stadium named after their company.

 9 This simply demonstrates that public

 10 relations is a far more justifiable expense to PPL

 11 than keeping toxins out of an entire community's

 12 water.

 13 The JE Corette Power Plant in Billings

 14 where I live has ash ponds at the banks of the

 15 Yellowstone River. This river is a treasure to

 16 our state that provides irrigation water, drinking

 17 water, and recreation to thousands of people.

 18 I've heard the industry representatives

 19 today advocate for weak regulations, and while I

 20 understand their responsibility to their companies

 21 and to the bottom lines, I would ask who, who in

 22 particular should be poisoned in order to boost
 153

 1 their profit margins? Who are these people? And

 2 I would love to see the industry actually name

 3 names.

 4 Luckily, the EPA is not beholding to

 5 shareholders and instead is beholding to citizens,

 6 and we are here to ask for the protections offered

 7 by the federally enforceable minimum standards

 8 under Subtitle C.

 9 For the sake of our health and welfare

 10 and that of future generations, we ask you to

 11 please adopt the regulations under Subtitle C.

 12 Thank you.

 13 MS. DEVLIN: Thank you. Number 39,

 14 please.

 15 MR. MALONEY: My name is Mike Maloney.

 16 I'm the president and CEO of Novinda Corporation.

 17 Novinda Corporation is a Colorado-based company

 18 that provides a sorbent material for removing

 19 mercury from coal-fired utilities.

 20 Our product, Amended Silicates, was

 21 actually developed with funds from EPA and U.S.

 22 DOE. In 2000, EPA and DOE allocated funds for the
 154

 1 development of a noncarbon sorbent -- noncarbon,

 2 concrete-compatible mercury sorbent specifically

 3 to preserve the use of fly ash in concrete.

 4 Amended Silicates is that product, a 100 percent

 5 concrete- compatible mercury sorbent. We also

 6 have evidence that Amended Silicates picks up

 7 selenium and arsenic.

 8 Amended Silicates chemically renders

 9 flue gas mercury into a stable, inert, and

 10 insoluble form so that it is permanently and

 11 safely sequestered in concrete.

 12 We understand that the TVA impoundment

 13 failure in 2008 has raised concerns over the

 14 regulation of fly ash. In that light, we ask

 15 ourselves, What regulatory hole is EPA trying to

 16 plug?

 17 EPA's stated concerns regarding

 18 regulation of CCRs borne out of the TVA spill are,

 19 quote, pollution from impoundments and landfills

 20 leaching into groundwater and structural failures

 21 of impoundments. We agree with this concern.

 22 It is apparent that TVA's issues were
 155

 1 twofold: That their containment structure was

 2 inadequate, and that TVA did not have appropriate

 3 incentives to avoid impoundment altogether and

 4 move their fly ash into a beneficial use.

 5 Regulating coal ash under Subtitle D

 6 with increased engineering requirements for

 7 landfills and impoundments effectively plugs this

 8 regulatory gap.

 9 More importantly, under Subtitle D, EPA

 10 has the power to effectively alter the economics

 11 of coal fly ash in favor of beneficial use thereby

 12 -- by increasing the costs associated with

 13 landfill disposal.

 14 The alternative is to reclassify fly ash

 15 as a hazardous waste under Subtitle C. This

 16 approach risks undermining EPA's own goals. In

 17 fact, EPA's own website states, quote, "CCR's

 18 rarely reach RCRA hazardous waste characteristic

 19 levels."

 20 Debating whether or not Subtitle C

 21 hazardous waste designation would stigmatize fly

 22 ash misses the point in our opinion. The more
 156

 1 compelling question is, If regulating CCRs under

 2 Subtitle D with increased requirements for

 3 landfill disposal would not only have prevented

 4 the TVA spill but also satisfies EPA's goals, why

 5 would EPA even risk the stigmatization of CCRs

 6 under Subtitle C?

 7 If a Subtitle C regulation limits or

 8 eliminates beneficial use of CCRs, up to an

 9 additional 30 million tons per year of fly ash

 10 would require land disposal. This is nearly

 11 double the amount of CCRs disposed of today, or at

 12 least fly ash.

 13 The resulting filling of existing

 14 landfills and subsequent need for additional land

 15 dedicated to fly ash disposal would cause further

 16 and unnecessary environmental stress.

 17 Novinda strongly urges EPA to regulate

 18 CCRs under Subtitle D and allow us to help EPA

 19 accomplish its goals by safely sequestering

 20 mercury, selenium, and arsenic in concrete.

 21 Thank you.

 22 MS. DEVLIN: Thank you. Number 40.
 157

 1 MR. BAUGHMAN: Good afternoon. My name

 2 is Gary Baughman. I work for the State of

 3 Colorado, but I'm speaking today as president of

 4 the Association of State and Territorial Solid

 5 Waste Management Officials.

 6 Our members are responsible for

 7 implementing the state solid and hazardous waste

 8 management programs in our 50 states and six

 9 territories. Needless to say, our members are

 10 very interested and concerned about this proposal,

 11 and while I can only mention some broad issues

 12 here, ASTSWMO will be submitting extensive written

 13 comments during the comment period.

 14 The states overwhelmingly support the

 15 Subtitle D option over the Subtitle C option. The

 16 wastes do not meet the normal criteria to be

 17 listed as a hazardous waste.

 18 To regulate these wastes as a hazardous

 19 waste will dilute our ability to focus our efforts

 20 on programs that are already strained for the

 21 proper management of hazardous waste.

 22 The environmental damage sites the EPA
 158

 1 has analyzed are all instances where some, if not

 2 all, of the disposal activity was conducted prior

 3 to strengthening of the design requirements for

 4 such activity during the 1990s.

 5 We're concern about the impact the

 6 regulation under Subtitle C would have on the

 7 state's already strained resources to manage

 8 hazardous waste, and the amount of coal combustion

 9 residuals presently being land disposed is nearly

 10 40 times as much as the amount of all other

 11 hazardous waste currently be land disposed.

 12 EPA has not collected information on and

 13 the proposal does not recognize the strong state

 14 solid waste enforcement authorities that are

 15 routinely used around the country. We're also

 16 very concerned about the impact listing this waste

 17 under Subtitle C would have on the beneficial use

 18 of this waste. The states strongly support

 19 appropriate beneficial use rather than land

 20 disposal of these wastes.

 21 Over a third of the CCR currently

 22 generated is presently being used beneficially.
 159

 1 We believe that amount would reduce significantly

 2 if the waste were listed under Subtitle C.

 3 I appreciate this opportunity to

 4 comment.

 5 MS. DEVLIN: Thank you. Number 41,

 6 please.

 7 MR. ENGLAND: Good afternoon. I'm Gary

 8 England. I'm with Headwaters Resources.

 9 Headwaters Resources is the largest

 10 post-combustion product marketer and manager in

 11 the nation.

 12 And as the largest marketer and manager

 13 of coal combustion products, we touch absolutely

 14 every aspect of the beneficial use of this

 15 material. And we are greatly concerned that if

 16 the EPA classifies this as Subtitle C hazardous

 17 waste, then all of that utilization and beneficial

 18 use will end.

 19 There's many reasons to continue to

 20 utilized fly ash. We've heard several reports

 21 today. The most obvious and compelling is the --

 22 is the conservation of our natural resources. For
 160

 1 every pound of CCPs that go to concrete or

 2 beneficial use, there's a natural resource that's

 3 not utilized for that.

 4 And on an annual basis those savings are

 5 roughly 159 trillion BTUs of energy. We save over

 6 12 million tons of CO2 production. Over 32

 7 billion gallons of water are saved, and has saved

 8 this country between 5 and 7 billion dollars a

 9 year.

 10 I don't believe there are many recycling

 11 projects and materials that can save that kind of

 12 -- that can see those kind of savings in our

 13 country.

 14 Not only do we see tremendous savings,

 15 but also most of the products that you utilize,

 16 coal combustion products are better. They're

 17 stronger. When coal combustion products are used

 18 in concrete production, it makes a stronger, more

 19 durable concrete.

 20 If we take the coal combustion products

 21 out of that, then the taxpayers are going to be

 22 placed with that burden. Most of our highway
 161

 1 infrastructure is concrete. That's going to be

 2 expensive to construct. It's going to be more

 3 expensive to maintain and certainly is going to

 4 last -- is going to have a tremendous impact on

 5 taxpayers.

 6 Under the EPA's current guidelines,

 7 Subtitle C/Subtitle D, the design and the

 8 operation of the landfills is basically the same.

 9 We strongly believe that under Subtitle D the

 10 states have the ability and have shown that they

 11 have the ability to be able to control the

 12 disposal. We agree that disposal has to be

 13 handled correctly. We believe under Subtitle D

 14 that that is -- the states are capable of doing

 15 that.

 16 We strongly believe that if it is a

 17 Subtitle C hazardous waste, it will not be

 18 utilized in concrete. We have been formally

 19 notified by Los Angeles Unified School District

 20 that fly ash is to be taken out of any of their

 21 projects at this point.

 22 And we have been notified by several
 162

 1 utilities that they will simply cease to take on

 2 that kind of liability and that potential

 3 litigation.

 4 We appreciate the opportunity to express

 5 our concerns and certainly hope that EPA will look

 6 at a Subtitle D classification.

 7 MS. DEVLIN: Thank you. Could I have

 8 Numbers 217, 218, 219 and 220, please.

 9 217, please. Thank you.

 10 MR. LONG: Thank you. My name is Kelvin

 11 Long from Flagstaff, Arizona, and I'm just here to

 12 state my concerns for just in general the use of

 13 fossil fuels and the byproducts that are -- that

 14 have and continue to cause a lot of irreparable

 15 damage to our land, animals, air, human beings,

 16 and plants.

 17 And I want to encourage the EPA on this

 18 issue -- specific issue to do more tribal

 19 consultation. Obama has a tribal consultation

 20 executive order, and before I chose which subtitle

 21 I would support, I would like to request that the

 22 EPA do more tribal consultation and make that
 163

 1 public as well as come out to the Navajo Nation

 2 and do this public hearing as well there. That's

 3 my request.

 4 Thank you.

 5 MS. DEVLIN: Thank you. Number 218,

 6 please.

 7 MR. GUSTIN: Good afternoon. My name is

 8 Fred Gustin, and I negotiate and administer

 9 contracts for the sales of coal combustion

 10 products for Kansas City Power & Light Company of

 11 Kansas City, Missouri.

 12 Over the past 25 years I've worked for

 13 the ash marketing subsidiary of a large cement

 14 company, I've worked in engineering consulting,

 15 and for two different utilities. So I've seen the

 16 ash industry from many different angles.

 17 I've spent the majority of my working

 18 life developing CCP markets that are

 19 environmentally safe, technically sound, and

 20 economically viable.

 21 As you probably know, our industry

 22 prefers the term "coal combustion products" or
 164

 1 CCPs. If there's one thing that I have learned

 2 over the past 25 years, it's that if you want to

 3 get somebody to pay you money for something, it

 4 helps if you don't refer to it as a waste.

 5 Our industry recycles almost 45 percent

 6 of production, and we'd like to do a lot better.

 7 But how have we managed to get this far? We've

 8 done the testing and the monitoring and the R&D

 9 necessary to prove the environmental safety, and

 10 we've learned about the chemical and physical

 11 properties of these materials.

 12 We've worked with state departments of

 13 natural resources to allow the responsible use.

 14 Very importantly, we worked in consensus

 15 organization like ASDM and ACI to establish

 16 standards and guidelines so these materials will

 17 be used properly.

 18 And finally, we worked with the

 19 engineers and the contractors to teach them how to

 20 use our materials properly and to get them written

 21 in to the specifications for projects.

 22 Some people believe that a hazardous
 165

 1 designation will increase recycling rates. I know

 2 the opposite to be true. A hazardous designation

 3 will place a stigma on these materials, and

 4 potential users will shy away from their use and

 5 instead buy virgin raw materials with few

 6 complications.

 7 In the event of a C designation, my

 8 company and a lot of other utilities are going to

 9 think long and hard about whether to continue

 10 allowing the sale of CCPs, and customers are

 11 concerned because of the possibility of toxic tort

 12 suits by aggressive plaintiff attorneys.

 13 Let me give you a real-life example.

 14 When I was working for LaFarge Corporation in

 15 Minnesota in the mid-1990s, we were selling a lot

 16 of Class C fly ash to a large commercial property

 17 developer that was using it to stabilize wet soils

 18 on their construction sites.

 19 In spite of our strict compliance with

 20 the conditions of the Minnesota Pollution Control

 21 Agency permit, and in spite of the volumes of data

 22 that have been generated by the University of
 166

 1 Minnesota and the University of North Dakota on

 2 our projects that demonstrated the environmental

 3 safety of this practice, the developer abruptly

 4 discontinued the use of fly ash on the advice of

 5 their environmental attorneys.

 6 One of their attorneys told me that

 7 there was reluctance on the part of lending

 8 institutions to finance projects because they were

 9 afraid that some day they might need to do a

 10 Superfund clean-up on a developed building site

 11 and possibly tear the building down. In my

 12 experience, the stigma factor is very real and

 13 difficult to quantify.

 14 To conclude, there have been many

 15 challenges in gaining recognition and acceptance

 16 of fly ash and other CCPs as valuable materials of

 17 construction rather than as waste. We need all

 18 the help that we can get.

 19 Please do not regulate CCRs as -- under

 20 Subtitle C, and please help us instead with a

 21 Subtitle D designation.

 22 Thank you very much.
 167

 1 MS. DEVLIN: Thank you. Number 219,

 2 please.

 3 MR. NELSON: I want to thank you for

 4 this opportunity. My name is Rick Nelson. I'm

 5 here in the capacity of a retired senior citizen

 6 on a fixed income, and I'm concerned about this

 7 action because the EPA has gone on record saying

 8 under Subtitle C if this goes forward that

 9 utilities rates could increase up to 10 percent.

 10 By way of background, I've spent nearly

 11 the last 40 years working in the transportation

 12 industry, both for the railroads and the trucking

 13 industry. I've worked with chemical companies.

 14 I've worked with coal companies. I've worked with

 15 cement companies.

 16 I'm familiar with fly ash. I'm familiar

 17 with the transportation of hazardous and

 18 nonhazardous material. The landfill operators

 19 that I have dealt with in the past, I have seen

 20 tipping fees go from 20 to 30 dollars a ton up to

 21 four or 500 dollars a ton because of the change in

 22 the classification from nonhazardous to hazardous.
 168

 1 As an individual on a fixed income, I

 2 guess my question is, if this action moves forward

 3 and the rates exceed the 10 percent that the EPA

 4 has suggested, is the government going to step up

 5 and subsidize me on my utilities bills?

 6 I doubt very seriously that they would

 7 do that, and what guarantee do I have as a senior

 8 citizen on a fixed income that I would be able to

 9 afford my utility rates in the future if you go

 10 forward with this action.

 11 Thank you very much.

 12 MS. DEVLIN: Thank you. Number 220,

 13 please.

 14 MR. SCHANTZ: Good afternoon. My name

 15 is Mike Schantz, and I'm a professional civil

 16 engineer and environmental engineer with over 20

 17 years of experience dealing with these materials.

 18 That being said, it's been over 10 years since I

 19 worked for an ash marketer. So I'm here simply

 20 because I care about this issue from a personal

 21 perspective.

 22 My paycheck doesn't come from a utility.
 169

 1 It doesn't come from an ash marketer. My

 2 experience and, in fact, the data in the proposed

 3 rules as well as comments that we've already heard

 4 from the state solid waste regulatory officials

 5 make it clear that these materials do not

 6 generally exhibit hazardous characteristics.

 7 It's important that people understand

 8 that, i.e., they do not generally leach hazardous

 9 levels of toxic constituents.

 10 Now, that being said, I do think

 11 regulations are warranted. One thing that I think

 12 people need to understand is when materials are

 13 landfilled, some leaching is inevitable.

 14 Municipal solid waste, for instance, generally

 15 exhibits leaching behaviors dramatically higher

 16 than what you see out of these materials, but yet

 17 they're very successfully managed under Subtitle

 18 D.

 19 I suggest to you that these materials

 20 could be managed in that same fashion quite

 21 effectively.

 22 Unfortunately, it's clear that
 170

 1 irresponsible management of coal combustion

 2 byproducts, residues, waste, call it what you

 3 will, can have real environmental harm and create

 4 the potential for human health impacts.

 5 This was unfortunately demonstrated to

 6 us at Kingston, but please remember this failure

 7 was an engineering failure. It was largely driven

 8 by an engineering failure of the embankment.

 9 Now, I would suggest to you that the

 10 environmental impacts and the potential human

 11 health risk would have been similar had that

 12 impoundment had, for instance, sea water in it.

 13 Pretend that embankment had sea water behind it

 14 and the embankment failed. Would we be sitting

 15 here debating whether or not we call sea water

 16 toxic and hazardous under Subtitle C.? I rather

 17 doubt that would be the response.

 18 In short, I think the responsible

 19 approach clearly would be to regulate these

 20 materials under Subtitle D so that they're

 21 protective of human health and potential

 22 environmental impacts.
 171

 1 I also don't want my utility rates to

 2 increase as a result of overregulation.

 3 So thanks for listening.

 4 MS. DEVLIN: Thank you. Numbers 42, 43,

 5 44, and 45, please.

 6 MR. GUSTIN: This is a little

 7 embarrassing. My first testimony was as a

 8 citizen, and this is my prescheduled testimony

 9 representing Kansas City Power & Light.

 10 Once again, my name is Frederick Gustin,

 11 and I'm the manager of coal combustion products

 12 for KCP&L. We're based in Kansas City, Missouri.

 13 I'm here today to express the support of

 14 KCP&L for the Subtitle D prime option and to

 15 express our strong opposition to any Subtitle C

 16 designation for coal ash.

 17 As we've seen from many years of testing

 18 CCPs, and as EPA determined both in 1993 and in

 19 2000, a Subtitle C determination is clearly not

 20 warranted as long as these materials are managed

 21 properly.

 22 As you've seen, there's been a
 172

 1 groundswell of bipartisan opposition to Subtitle C

 2 across the political regulatory spectrum. Why is

 3 this?

 4 We believe that it's because regulation

 5 under Subtitle C would impose significant but

 6 unnecessary costs on our customers of electricity

 7 and on the taxpayers. EPA has stated that a

 8 Subtitle D determination would provide the same

 9 protections to the environment as would a Subtitle

 10 C.

 11 A Subtitle D prime would require

 12 groundwater monitoring for ash ponds with

 13 compliance enforced through the states permitting

 14 frameworks. We do not agree that an

 15 across-the-board closure of all ponds is

 16 appropriate for those ponds that are performing in

 17 an environmentally satisfactory manner.

 18 Further, the states of Missouri and

 19 Kansas have strong utility byproduct management

 20 programs, and we encourage EPA to look closely at

 21 them.

 22 Regarding beneficial use of CCPs, there
 173

 1 are two points that I'd like to make. First, the

 2 hazardous waste stigma is very real, and it has

 3 already arrived. Lesley Stahl on the 60 Minutes

 4 segment "Is Coal Ash Safe?" asked EPA

 5 administrator Lisa Jackson if she thought that fly

 6 ash in countertops and in carpeting used in

 7 elementary schools was safe, and she asked the

 8 question in a tone that indicated that she herself

 9 did not feel it was safe. Yet the safety of CCPs

 10 in products is an issue that has been addressed

 11 over and over.

 12 Second, EPA needs to allow and encourage

 13 the development of uses for these valuable

 14 materials in more applications than in just

 15 concrete.

 16 Approximately 50 percent of the fly ash

 17 sold by our marketer goes into the production of

 18 concrete. The balance is sold for use in soil

 19 stabilization and application -- another

 20 application that we are very excited about,

 21 recycling old deteriorated county roads into new

 22 roads.
 174

 1 In 2005, KCP&L won an award from the

 2 EPA's C2P2 program for partnering with Jackson

 3 County, Missouri, LaFarge Corporation, and the

 4 University of Missouri-Kansas City to demonstrate

 5 and document this innovative and valuable

 6 application, and a case study was featured on the

 7 C2P2 website until recently.

 8 To conclude, there is simply not enough

 9 concrete produced annually in the United States to

 10 utilize 100 percent of fly ash production. That,

 11 along with the fact that not all fly ash meets the

 12 strict quality requirements for use in concrete

 13 but may meet requirements for other uses, requires

 14 that EPA both allow and encourage other uses for

 15 these materials that can be shown to be safe.

 16 Thank you very much.

 17 MS. DEVLIN: Thank you. Number 43,

 18 please.

 19 MR. DOCTOR: Thank you. I'm Bob Doctor.

 20 I manage Wyoming's solid waste permitting and

 21 corrective action program and Wyoming DEQ. I'm

 22 here with a written statement, so I'll try and be
 175

 1 quick here.

 2 We regulate -- and I'm sorry. We use

 3 the W word in Wyoming still -- coal combustion

 4 waste, which is regulated as a Subtitle D waste

 5 under rules that mirror EPA's Subtitle D

 6 requirements for municipal solid waste. We

 7 regulate it under three separate programs in the

 8 DEQ in Wyoming. Surface impoundments are

 9 regulated both by our water quality division as

 10 wastewater ponds and under our state engineer's

 11 office under dam regulations for the construction

 12 of dams and dikes in the state engineer's office.

 13 These two programs both require

 14 permitting for all these impoundments. They have

 15 various degrees of monitoring, engineer

 16 certification, inspections a minimum once every

 17 five years of these impoundments.

 18 I can speak more to solid waste since

 19 that's the program I manage. We permit these

 20 things almost like we do municipal solid waste

 21 landfills with virtually the same type of

 22 requirements for public participation, liners,
 176

 1 other engineered containment systems such as caps,

 2 leachate management.

 3 We also require characterization of the

 4 waste. We encourage especially that. We require

 5 that for any beneficial use. We try to encourage

 6 beneficial use through our solid waste rules and

 7 regulations.

 8 We also have requirements for monitoring

 9 corrective action. Again, another public

 10 requirement for participation if facilities must

 11 go into public corrective action mode.

 12 We also require closure and long-term

 13 post-closure care for these facilities that

 14 amounts to about the same 30 years of post-closure

 15 care that you would give to a municipal landfill.

 16 We believe that states are in a better

 17 position to regulate coal combustion waste than

 18 the EPA is. Most of these decisions, many are

 19 site-specific conditions that require

 20 site-specific knowledge of soils, groundwater,

 21 waste type, that stuff. We've heard that not all

 22 CCW is the same.
 177

 1 We think that states should regulate

 2 under it Subtitle D rules and regulations. We're

 3 already doing so for municipal solid waste, which

 4 is characteristically a far greater threat to

 5 human health and the environment than coal

 6 combustion waste and doing a very good job of

 7 that. We believe that we should continue under

 8 that mode.

 9 Thank you.

 10 MS. DEVLIN: Thank you. Number 44,

 11 please.

 12 MR. MCRAE: Good afternoon. My name is

 13 Clint McRae. My family and I ranch on Rosebud

 14 Creek south of Colstrip, Montana. We run a

 15 cow/calf operation and a yearling operation. My

 16 family has lived on that -- on Rosebud Creek since

 17 before Montana was a territory.

 18 If there's one common denominator of why

 19 my family is still there, one word is water. Both

 20 quality and quantity.

 21 I live in the shadows of four coal-fired

 22 power plants in the town of Colstrip. We early on
 178

 1 questioned the ash disposal method of those

 2 settling ponds, and we were assured by the State

 3 of Montana that these ponds would be -- and I

 4 quote -- completely sealed.

 5 We were lied to. They're leaking like a

 6 sieve. Any leaking in these ponds we were told by

 7 the board of health at that time -- and this

 8 individual's name was Dr. Will Clark. He said

 9 that the leaking ash ponds would activate the

 10 closing of the power plants. That's not going to

 11 happen.

 12 In the Armells Creek watershed in the

 13 town of Colstrip there are two ponds. Both of

 14 them over the years have leaked, contaminating

 15 domestic wells in homes and businesses in the town

 16 of Colstrip.

 17 60-some homeowners filed a lawsuit

 18 against PP&L Montana. They just settled a short

 19 time ago for $25 million in damages. In the

 20 Rosebud watershed which I live, another ash pond

 21 is leaking. This one is 400-and-some acres. It's

 22 80 feet deep. It's been leaking since it was
 179

 1 built, for 30 years.

 2 The monitoring wells below it have

 3 become pump-back wells, and the plume has moved

 4 nearly a one-mile radius around it. Again, the

 5 law stated that this should be -- and I quote --

 6 completely sealed, end quote.

 7 A cousin and neighbor who was checking

 8 water a year or so ago, this time of year in

 9 August and September, realized that there was

 10 water coming from the ground up into a reservoir,

 11 which does not appear in that time of year.

 12 He watched a deer come out of the timber

 13 and go in the water up to her chest. She never

 14 drank and went back to the timber. He tested that

 15 water. It was extremely high in many things, one

 16 of which is what I want to talk to you today

 17 about, and that's sulfates as it impacts cattle.

 18 The toxicity level for sulfates is 500

 19 milligrams per liter. The sulfate levels in this

 20 reservoir from the leaking ash ponds was 8,100,

 21 nearly 16 times the toxic level of sulfates. If a

 22 cow would drink this, she would die.
 180

 1 What is happening in my backyard is no

 2 stigma. It's real. This is an agricultural

 3 issue. It's a herd health issue.

 4 The State of Montana, Department of

 5 Environmental Quality, the only thing they have

 6 done is produced a two-page flowchart, which I

 7 will include with my comments today.

 8 This toxic and poison water, as I said,

 9 is a herd health issue, and the State of Montana

 10 has done nothing to enforce the law. Subtitle D,

 11 if chosen, will also do nothing and will continue

 12 the process as is.

 13 PP&L has done very little to stop the

 14 leak, and I think it's time that they become a

 15 good neighbor and work to protect us in the cow

 16 business. It's time for federal oversight.

 17 Please designate wet ash pond effluent

 18 what it is. It's hazardous. And at the minimum,

 19 please pick sub-standard -- C -- the C option.

 20 Thank you very much for your time.

 21 MS. DEVLIN: Thank you. Number 45,

 22 please.
 181

 1 MR. MOUTAIN: Yes. My name is Jim

 2 Moutain. I am an architect and land planner and

 3 have been in the business about 40 years. Fly ash

 4 in -- products have been used for a very long time

 5 in the construction industry. They're used for

 6 practically everything imaginable that you can do

 7 building-wise. Used as a concrete and mortar and

 8 wallboard blocks, bricks, shingles, and paint.

 9 So it's quite a wide range of things

 10 it's used in, and as a person who has to specify

 11 these things, we're very much concerned about how

 12 we accomplish this specification and how do we

 13 feel -- prove the goods are there as anticipated.

 14 The concern of contamination of this

 15 environment is, of course, a big item for all of

 16 us but is also something that, sounds like from

 17 other speakers, can be investigated, can be

 18 controlled.

 19 And for that reason we are very much

 20 interested in seeing it not being classified any

 21 higher than it is.

 22 I'm currently working with a client who
 182

 1 is developing a new concrete system which involves

 2 the reuse of many recycled materials to create

 3 wall systems and building systems which will be

 4 environmentally friendly, will be of benefit to

 5 the communities that we will be in.

 6 And therefore, I am very much interested

 7 in seeing it stay as open as it can while still

 8 being safely controlled.

 9 So I appreciate your time, and thank you

 10 very much.

 11 MS. DEVLIN: Thank you. Numbers 46, 47,

 12 48, and 49, please.

 13 MR. CARLSON: Thank you very much. My

 14 name is Paul Carlson. I'm pastor at Our Savior's

 15 Lutheran Church in Denver, Colorado. And I want

 16 to thank you very much for hearing my testimony

 17 today on this issue of dealing with coal ash,

 18 which is, as I understand, toxic residue from

 19 coal-fired power plants.

 20 As I've been reading and learning about

 21 coal ash, it apparently contains potential toxins;

 22 mercury and cadmium and arsenic, which can and do
 183

 1 end up in our groundwater and can move to our

 2 drinking water sources as well.

 3 These substances have also been

 4 associated with cancer. So one way or the other I

 5 think we have to say that they pose a significant

 6 public health risk that needs to be addressed.

 7 Obviously I'm not a scientist. I'm not

 8 a professional -- professionally conversant with

 9 the business of coal-based energy and the negative

 10 and beneficial contributions of coal ash, but it's

 11 clear that once again we are faced with a

 12 balancing act with business and commercial

 13 interests on the one hand and environmental

 14 integrity on the other.

 15 And there's a bottom line here, but it

 16 isn't financial. It's that the elements that make

 17 up coal ash are poisonous clearly when released

 18 into the environment. Remarkably this is not

 19 recent information, and the term "hazardous" has

 20 not been officially used to describe coal ash.

 21 The EPA is thankfully moving on this

 22 obvious point and taking positive action after a
 184

 1 long period of looking the other way.

 2 I speak as a citizen and as a person of

 3 faith who believes that we are called to be good

 4 stewards and caretakers of creation and of one

 5 another. The Judeo-Christian tradition, in spite

 6 of some mistaken notions, views creation as having

 7 its source in God and is therefore sacred.

 8 It is a treasure to be cared for, not a

 9 resource to be mined for all it can give. We are

 10 on a relationship of trust with the earth and with

 11 creation. That's fundamentally the Christian --

 12 the Judeo- Christian attitude, one shared by other

 13 faiths as well.

 14 At the very least this requires that we

 15 take an honest view of the results of coal ash

 16 released into the environment and not fog the

 17 obvious, which is that we are poisoning the earth

 18 and the water and that we have put our heads in

 19 the sand about this for years.

 20 Business and commercial interests must

 21 take second place to what amounts to our moral

 22 failure to care for creation. That's the reality,
 185

 1 and that will be the reality as we move forward to

 2 a world with increasing population and increasing

 3 energy and other needs.

 4 I do applaud the EPA for its efforts to

 5 address this important environmental and public

 6 health issue. This is merely an echo of a larger

 7 problem, that is, how are we going to work out the

 8 balance between the moral imperative to care for

 9 creation versus the desire on the part of those

 10 controlling our resources to make a profit on

 11 them.

 12 We all need the social benefits of

 13 energy production, but they cannot come at the

 14 price of carelessly treating the earth.

 15 Whatever decision is finally made, I

 16 hope it will take into account that the bottom

 17 line is not financial but rather moral.

 18 Thank you.

 19 MS. DEVLIN: Thank you. Number 47,

 20 please.

 21 MS. YANKEE: Thank you. I'm Pastor Tina

 22 Yankee, also connected to Our Savior's Lutheran,
 186

 1 as well as the director of a nonprofit. I thank

 2 you for the opportunity to speak to this important

 3 issue.

 4 I've been reading a bit of materials

 5 about coal ash, and I muse that I didn't take

 6 chemistry and all of that in college. Instead I

 7 studied stuff like psychology and philosophy and

 8 business as well as theology.

 9 So as a pastor I'm called to be in the

 10 caring professions, and also I'm a businesswoman.

 11 So I speak with those perspectives.

 12 I understand the need to make money,

 13 keep costs low, produce what is needed for

 14 customers. I understand and respect that we have

 15 energy -- electric bills at a reasonable price.

 16 But I need to put people first, and I

 17 note how God made each person very unique. And

 18 the fact is, I have a set of fingerprints that

 19 doesn't match anybody else here in this room or

 20 around the world. So we are unique. And we're

 21 holy in my understanding and part of God's

 22 creation.
 187

 1 So I want to quickly tell you that I do

 2 a ministry in the Denver County Jail working with

 3 inmates, and with the inmates I work with people

 4 in the federal and state correctional as well as

 5 the county jail. I'm comfortable with people with

 6 criminal offenses. And however, I'm not very

 7 comfortable talking about this today.

 8 But I do see a parallel, and that is

 9 there was an experiment that happened a few years

 10 ago in my life where I went to a table. It was a

 11 long table. On one end of the table was a lot of

 12 food, in the middle of the table was a little bit

 13 of food, and the far end was some soupy-looking

 14 stuff with unknown entities in it.

 15 And so where did I get to sit at the

 16 table? I was blessed because I got to sit with

 17 two rich folks with all the great food down on

 18 that end. But if you think about it, where we are

 19 born, whether we're born rich or poor, whether we

 20 are born around coal ash like the gentleman that

 21 spoke earlier, whether you're born in that

 22 environment it's like the luck of the draw, like
 188

 1 sitting at that table.

 2 And so I want to say that my folks are

 3 in jail or in bondage, if you will, and they

 4 probably have done some things that got them

 5 there, but what about those people who are born in

 6 this environment living around coal and ash that

 7 is very harmful in so many ways? We need to get

 8 it, to understand it from their perspective of

 9 being caught in this.

 10 The cost of implementing Subtitle C is

 11 estimated, according to the material I read, by 1

 12 percent of electrical costs, and so I suggest that

 13 we seriously consider that.

 14 Thank you.

 15 MS. DEVLIN: Thank you. Number 48,

 16 please.

 17 MS. BONOGOFSKY: Good afternoon. My

 18 name is Alexis Bonogofsky, and I'm representing

 19 the National Wildlife Federation. I live in

 20 Billings, Montana, and I live two miles from PP&L

 21 JE Corette plant right on the Yellowstone.

 22 I would like to remind the EPA that your
 189

 1 mission is to protect health and our natural

 2 resources, not profit margins of corporations. I

 3 would also like to make the point that we are here

 4 today because so far industry has been unable or

 5 unwilling to take care of the problem that we have

 6 with coal ash.

 7 In Colstrip, Montana, this plume is

 8 moving, like Clint McRae said, in a mile radius

 9 around is moving toward the northern Cheyenne

 10 Reservation. Nothing is being done except for

 11 monitoring.

 12 State oversight is stunningly casual or

 13 absent, and states have already shown that they're

 14 incapable at best and negligent at worst in taking

 15 care of this problem.

 16 NWF is strongly encouraging the EPA to

 17 regulate CCRs under Subtitle C. Although we will

 18 be submitting detailed comments about the effects

 19 of coal ash on wildlife populations that we hope

 20 the EPA considers under this issue, I really want

 21 to talk about this process.

 22 If we were truly looking at public input
 190

 1 in dealing with these problems, we would have

 2 public hearings in Colstrip, Montana; Billings,

 3 Montana, and of course, all of the numerous

 4 smaller communities that have to deal with this

 5 problem in rural America.

 6 Instead we're sitting in a hotel in

 7 Denver, Colorado, with a lot of paid people,

 8 including myself, to be here to hopefully

 9 represent people's interest. I hope you're really

 10 listening to the people who are here today that

 11 are unpaid. They come from these communities that

 12 are experiencing contaminated aquifers, rare

 13 cancers, sinking towns.

 14 This is affecting people who don't have

 15 the money to come here and testify. People had to

 16 take -- a lot of people had to take time off work

 17 to come here, spend their own money to come here,

 18 and those are the people that we need to think

 19 about when we're -- when we're looking at what we

 20 should do here.

 21 And I hope that this isn't just a check-

 22 off-the-box of public input, because in 10 years
 191

 1 of working in the public process, my experience

 2 has been the decision is already made, and this is

 3 just a check- off-the-box before a decision is

 4 made.

 5 And I really hope that that box of

 6 written comments, that someone actually spends

 7 some time looking through them and really looking

 8 at what people are saying.

 9 And thank you very much.

 10 MS. DEVLIN: Thank you. Number 49,

 11 please.

 12 MR. SAUER: Hello. My name is Brad

 13 Sauer. I'm a carpenter, and I help run a family

 14 ranch on the Rosebud Creek in southeast Montana.

 15 I want to say that you've already heard

 16 from one of my neighbors regarding many of the

 17 issues with hazardous coal ash, but I'd also like

 18 to say that two of my other neighbors are

 19 currently in litigation regarding the hazardous

 20 aspect of coal ash leaching into groundwater.

 21 And they're considering settlements.

 22 They may have already settled. I don't know, but
 192

 1 with those settlements comes a gag order. Clint

 2 also forgot to mention that the people in Colstrip

 3 that took the settlement with their houses, there

 4 was a gag order placed on them.

 5 As a carpenter I'm involved in

 6 remodeling of older buildings. I regularly

 7 encounter asbestos products. I have to address

 8 them in a very specified way. The rules don't

 9 often completely apply or make complete sense, but

 10 I am very willing to do that because it makes my

 11 workplace safer, and I believe it makes a better

 12 home for the people.

 13 Now, these rules were vigorously opposed

 14 by the building industry; however, they have

 15 adjusted. Their market has adjusted. The costs,

 16 of course, are borne by the customer, but the

 17 market has adjusted.

 18 Coal ash is known to be hazardous in

 19 many ways -- many instances. My state essentially

 20 regards it as if it were no different than saw

 21 dust.

 22 As a small businessman, I'm willing to
 193

 1 do my part in keeping our living situations clean.

 2 I would ask that the same thing be -- same

 3 regulations that apply to asbestos, the same

 4 concept be applied to coal ash in the form of your

 5 Subtitle C regulation -- I'm not used to public

 6 speaking. Excuse me -- because it takes a swing

 7 back to -- in regulation to inspire innovation and

 8 input and changes that are positive. It's just

 9 the nature of humans and government.

 10 My illustration of that point, and it

 11 applies directly to the coal industry, is

 12 reclamation. My predecessors on Rosebud Creek

 13 were heavily involved in the development of

 14 regulation ideas and rules with the advent of the

 15 Colstrip power plant there. Those rules were

 16 vigorously opposed by the coal industry, but it's

 17 a very good idea, according to them.

 18 Thank you.

 19 MS. DEVLIN: Thank you. Numbers 50, 51,

 20 52 and 53, please. You can go ahead.

 21 MR. MIDYETT: My name is Michael

 22 Midyett. I'm general manager for the Pavestone
 194

 1 Company. We have two manufacturing facilities

 2 here in Colorado.

 3 This is not a comment of the

 4 nonenforcement of the existing rules and

 5 regulations, but -- as it pertains to the

 6 contamination, but it is a comment on the

 7 designation as hazardous waste.

 8 At Pavestone we manufacture products;

 9 retaining walls, paving stones, and the like. We

 10 have 18 facilities throughout the United States

 11 and service over 40 states. We also service DOTs,

 12 state, local, and federal government, distribution

 13 of retail accounts. Our largest customers are

 14 Wal-Mart and Home Depot.

 15 In 2009 we purchased 45,000 tons of fly

 16 ash product. Product is beneficial in increasing

 17 performance, reducing efflorescence, and it

 18 actually lowers our manufacturing costs.

 19 Accordingly, it's provided us the ability to

 20 provide consumers a high quality product at a low

 21 margin. It also eliminated 45,000 tons of waste

 22 product which otherwise would have been dumped.
 195

 1 While we understand the beneficial-use

 2 designation of the product as these are not

 3 considered a hazardous waste product, we're not

 4 certain our customers are actually -- their

 5 customers understand the difference.

 6 The moment that the CCP is designated as

 7 a hazardous waste is the moment the litigation

 8 will occur. With litigation comes the inevitable

 9 indemnification clauses and corresponding

 10 insurance costs.

 11 As is typical, these costs will be

 12 transferred to our consumers and eventually to the

 13 customers. So we can foresee future project

 14 specifications allowing CCP provided we provide

 15 the -- or we the manufacturer assume all

 16 liability.

 17 Or the other option is we choose not to

 18 use the designated waste product or what -- the

 19 product that has been designated as a waste

 20 product despite the benefits, and instead we order

 21 an additional 45,000 tons of cement product with

 22 the corresponding greenhouse gases associated with
 196

 1 the manufacturing of the product.

 2 Cement is almost 15 to -- can be up to

 3 15 times the cost of what our fly ash is. We'll

 4 share that concrete increased cost with the

 5 consumer.

 6 So in conclusion, we have an entire

 7 concrete products industry currently incorporating

 8 coal combustion products. It is a low-cost,

 9 high-benefit material, but it's not integral to

 10 manufacture a high quality product.

 11 The designation of any part of CCP as a

 12 hazardous waste will only increase the probability

 13 of waste piles and slowly eliminate a recycling

 14 avenue that has worked successfully for years.

 15 Thank you.

 16 MS. DEVLIN: Are numbers 52 and 53 in

 17 the room?

 18 MS. MCCORMACK: Good afternoon. I am

 19 Maureen McCormack. I'm a sister of Loretto, one

 20 of Loretto Earth network coordinators, and a

 21 member of the Eco-Justice ministries board.

 22 My thanks to the EPA for giving us this
 197

 1 opportunity for public comment about a very

 2 serious problem, coal ash.

 3 You may have heard it said that you know

 4 you've had a bad day when a team from 60 Minutes

 5 camps on your door step. Well, a team from 60

 6 Minutes showed up at coal ash disposal sites not

 7 once but twice. It was a bad day for the industry

 8 and will be a bad day for ordinary citizens if we

 9 let the problems associated with coal ash storage

 10 and disposal go unchecked.

 11 I have studied the two options for

 12 regulation that the EPA proposes. I strongly

 13 recommend the one under Subtitle C of the Resource

 14 Conservation and Recovery Act. I only wish it was

 15 stronger. For example, I have major concerns

 16 about the exemption for beneficial uses and the

 17 absence of regulations for mine fills. These seem

 18 like large loopholes to me.

 19 The suggested guidelines approach, as in

 20 the Subtitle D option, is a very weak alternative.

 21 We have enough contemporary examples of what

 22 happens when industries police themselves or
 198

 1 states operate under suggested guidelines.

 2 Ordinarily recycling is beneficial for

 3 the planet. Not so when unregulated coal ash

 4 which contains toxic elements is used in making

 5 concrete, wallboard, asphalt, as fills for golf

 6 courses, as cinders to provide traction on

 7 highways, and in carpets and countertops. Coal is

 8 not clean. Coal ash is not just harmless dirt.

 9 When heavy metal such as arsenic, lead,

 10 cadmium, and mercury seep into our drinking water,

 11 our rivers, streams, and fragile ecosystems from

 12 coal ash disposal sites, the results are increased

 13 risks of cancer, learning disability, birth

 14 defects, and other preventable conditions.

 15 Not surprisingly, most of the coal ash

 16 disposal sites are found in areas that are

 17 disproportionately low income.

 18 At a time in our history when there is

 19 gridlock in Congress, I am counting on the EPA

 20 under the able leadership of administrator Lisa

 21 Jackson to exercise its authority and strongly

 22 regulate the storage and disposal of coal ash.
 199

 1 The health of our communities depends on it.

 2 Chose the Subtitle C option.

 3 Thank you.

 4 MS. DEVLIN: Thank you. Number 53,

 5 please.

 6 MS. KAISER: My name is Mary Kaiser.

 7 Thank you for allowing me to speak in support of

 8 Subtitle C. I am speaking not just for myself but

 9 for the many disadvantaged people living near coal

 10 ash dumping sites that pollute the drinking water

 11 with arsenic, lead, mercury, and other heavy

 12 metals found to increase cancer 900 times above

 13 that which is defined as acceptable, and these

 14 remain toxic for years.

 15 About 129 million tons of coal ash is

 16 generated by the U.S. each year, making it the

 17 nation's second largest waste stream. The toxic

 18 byproduct of coal combustion is disposed at

 19 approximately 600 coal ash landfills and

 20 industrial waste ponds nationwide.

 21 At least 23 states have poisoned surface

 22 or groundwater supplies as a result of improper
 200

 1 disposal of coal ash. The industry would like

 2 people to believe that it is just dirt. It is

 3 not. It is a hazardous waste posing serious

 4 health risks to humans, wildlife, and the

 5 environment. The industry has hundreds of

 6 unregulated coal ash storage ponds located next to

 7 rivers throughout the United States.

 8 Environmental engineers at Duke and

 9 Georgia Tech and medical researchers from Duke's

 10 Comprehensive Cancer Center conducted a detailed

 11 assessment of the spill at the Tennessee Valley

 12 Authority's plant in Harriman, Tennessee. Their

 13 analysis of the ash samples revealed that the

 14 spilled sludge contained high levels of toxic

 15 materials and radioactivity, including 75 parts

 16 per million of arsenic, 150 parts per billion of

 17 mercury, and 8 picocuries per gram of total

 18 radium. A picocurie is a standard measure of

 19 radioactivity.

 20 Fine particulates, which are roughly the

 21 same size as bacteria, are so small that they can

 22 easily be inhaled into the deepest reaches of the
 201

 1 lungs. People with preexisting pulmonary disease

 2 or infections would be more susceptible. Past

 3 studies have shown that fine particulates can also

 4 pose risks for people with diabetes or a

 5 susceptibility to vascular disease.

 6 According to the data collected in 1995,

 7 more than 60 percent of the country's coal ash

 8 disposal units are unlined or clay lined. The EPA

 9 also found that these composite liners -- the use

 10 of a composite liner system significantly reduces

 11 the exposure to coal ash causing- and

 12 health-threatening pollution to within acceptable

 13 levels. If the federal -- but the federal

 14 government and most states do not require such

 15 protective measures.

 16 I, therefore, encourage you to support

 17 Subtitle C with monitoring by both the individual

 18 states and the EPA who will set and enforce a

 19 national standard. We cannot continue to put

 20 those living storage locations at high risks of

 21 health problems. We need enforceable standards.

 22 Thank you for allowing me to speak in
 202

 1 support of Subtitle C.

 2 MS. DEVLIN: Thank you. I'm going to go

 3 a little bit out of order. Can I have Numbers

 4 207, 221, 222, and Number 87, please.

 5 MR. SPENDLEY: Hi. I'm Tanner Spendley.

 6 I'm from Denver. Unlike most here, I'm not a paid

 7 lobbyist. I took off the time because this is

 8 something I'm concerned about.

 9 For 30 years now the EPA has been

 10 studying coal ash, at least they began, and for 10

 11 years they've known they need to regulate it. The

 12 time to act is now.

 13 We've seen what happened when industry

 14 leaders try to regulate themselves, and the

 15 banking industry recently tried to do that, and

 16 the financial system nearly collapsed. We cannot

 17 put the health of the citizens to these people who

 18 care nothing about the bottom line.

 19 I'm concerned about the future. You

 20 know, the EPA has long known that mercury,

 21 cadmium, and lead are dangerous toxins and are

 22 hazardous and cancerous. Individually you
 203

 1 regulate them, but when they're found in coal ash,

 2 nothing is done.

 3 We need comprehensive regulation through

 4 the EPA by the federal government. States cannot

 5 be left alone to regulate these companies. Texas,

 6 Alabama, and a couple other places, quite frankly,

 7 they just do not regulate these guys.

 8 So should the citizens of those states

 9 be left to the wills of these coal leaders? And

 10 if you think there's such a thing as clean coal, I

 11 recommend you guys go to the citizens of Harriman,

 12 Tennessee, or Pines, Indiana, and ask them what

 13 they think about clean coal really, this is the

 14 chance. This is the chance for you guys to put

 15 the public first. Rather than go to pocketbooks

 16 of coal industry leaders, lobbyists, think about

 17 the public health.

 18 I ask that you vote for Subtitle C for

 19 the benefit of citizens of America and for our

 20 future generations.

 21 Thank you very much for the time to

 22 speak publicly. I appreciate it.
 204

 1 MS. DEVLIN: Thank you. Number 221.

 2 MR. HARVEY: Thank you very much. My

 3 name is Kevin Harvey. I too am unpaid. I took

 4 the day off of work to come here and speak my

 5 mind. I'm amending a statement from earlier.

 6 Nearly all statements in favor of

 7 Subtitle D have referred to the potential for coal

 8 waste to be safe. The waste has even greater

 9 potential to be dangerous and devastating causing

 10 irreparable damage to the environment and to human

 11 health.

 12 Nearly all uses of coal waste have been

 13 the result of necessity due to the massive amounts

 14 of coal waste generated and the excess waste with

 15 nowhere to dispose of if all.

 16 Nearly all statements in favor of

 17 Subtitle D have referred to coal waste disposal

 18 methods as potentially safe and potentially

 19 effective. This potential for safety is the

 20 greatest reason for the Environmental Protect

 21 Agency to regulate heavily the waste-produced

 22 coal.
 205

 1 We cannot sacrifice human and

 2 environmental safety for the fiscal benefit of

 3 companies that are all aware of this potentiality.

 4 It is time for the EPA to protect our environment

 5 from those companies that are willing to put money

 6 over the safety of our environment and our

 7 citizens.

 8 Fulfill your name sake and regulate by

 9 passing Subtitle C to protect humans and the

 10 environment from the financial interests of

 11 corporations and their admitted potentiality for

 12 safety.

 13 Thank you.

 14 MS. DEVLIN: Thank you. Number 222,

 15 please.

 16 MR. APT: Good afternoon. My name is

 17 Allen Apt. I'm a local citizen. I live in

 18 Nederland, Colorado. I want to thank you for the

 19 opportunity to speak.

 20 The coal ash tragedy in Tennessee is

 21 proof that the coal industry and utilities cannot

 22 be trusted. They are unable or unwilling to
 206

 1 consider public health and safety in their

 2 practices. This is an industry that continues to

 3 spew thousands of tons of known neurotoxins and

 4 mercury into our air and water and still fights

 5 regulation at every step. As you know, no fish is

 6 safe to eat as a result.

 7 I'd like to thank you for recognizing

 8 the very serious health and safety risks posed by

 9 toxic ash. Only regulation will prevent more

 10 Superfund sites. As you know, Superfund sites are

 11 paid for by you and I, taxpayers. This is unfair.

 12 Coal ash is significantly more polluting

 13 than originally thought. As you know, arsenic is

 14 now seeping into our groundwater, and living near

 15 coal ash is like smoking a pack of cigarettes

 16 every day.

 17 I strongly support option C, and I hope

 18 you will too. It's the only way that we will get

 19 the kind of protection we deserve, since storing

 20 of wet coal ash ponds is highly dangerous, largely

 21 unregulated.

 22 I'm also skeptical about the recycling
 207

 1 of coal cash. While I'd like to think that it can

 2 be done safely, I think it must be proven that

 3 it's safe before it is done.

 4 Cement is not indestructible. I think

 5 you've all seen cement sidewalks, cement

 6 driveways, all the other kinds of cement

 7 crumbling. I'd like to know just how safe having

 8 a toxin in something that is not completely stable

 9 is before we start using it -- or continue using

 10 it widely.

 11 Thank you very much for your time.

 12 MS. DEVLIN: Thank you. Number 87,

 13 please.

 14 MR. BYERS:: Thank you for this

 15 opportunity to speak on this important topic. My

 16 name is Bill Byers. I'm here representing Novinda

 17 Corp. Today.

 18 Novinda is a start-up company located

 19 here in Denver. We are commercializing a sorbent

 20 that captures mercury from the flue gas of

 21 coal-fired power plants and other combustion

 22 sources. Unlike other mercury sorbents, our
 208

 1 Amended Silicates product was specifically

 2 developed to preserve the value of fly ash to the

 3 cement industry.

 4 As EPA has mentioned, both Subtitle C

 5 and D options have similar engineering

 6 requirements for impoundments and landfills.

 7 Because EPA's concern with CCRs is the, quote,

 8 pollution from impoundments and landfills leaching

 9 into groundwater and the structural failure of

 10 impoundments, unquote, either option can address

 11 this concern.

 12 Because EPA can meet the goals using

 13 either option, it should not take the additional

 14 risk that a hazardous waste designation will

 15 create a stigma that will significantly reduce the

 16 amount of ash designated for beneficial use.

 17 Asking the market to consider a material

 18 hazardous waste unless it is intended for

 19 beneficial use is asking the CCR supply chain to

 20 accept a striking contradiction. How will a

 21 contractor react to the proposal that fly ash is a

 22 hazardous waste unless you use it to build a
 209

 1 school?

 2 The small increase in raw material costs

 3 from using alternative materials will outweigh the

 4 peace of mind from avoidance of litigation from

 5 eliminating that liability.

 6 The beneficial use of fly ash supports a

 7 multi-billion-dollar economy of small businesses,

 8 including Novinda, fly ash marketers, and

 9 lightweight brick manufacturers among others.

 10 That value, however, pales in comparison to the

 11 total return of the utility industry. The value

 12 represents less than one percent of the total

 13 revenues from the electric power utilities.

 14 If CCRs are designated a hazardous

 15 waste, the power utilities are more likely to

 16 landfill the CCRs than to place them into a

 17 potentially litigious marketplace.

 18 Regulating fly ash under Subtitle D

 19 addresses EPA's concerns and satisfies the

 20 agency's goals for CCRs by promoting beneficial

 21 use and increasing the economic incentives for

 22 industry to avoid landfilling by increasing
 210

 1 structural requirements for landfills and

 2 impoundments.

 3 I strongly urge you to go with the

 4 Subtitle D route.

 5 Thank you.

 6 MS. DEVLIN: Thank you. Numbers 54, 55,

 7 56, and 57, please.

 8 MS. COYLE: Good afternoon. My name is

 9 Mary Ann Coyle. I'm a member of the Loretto

 10 community, and we have our offices in the metro

 11 Denver area.

 12 My educational background is in

 13 chemistry, and while I began my career as a

 14 research chemist, I left this area of study but

 15 have never lost interest in environmental issues.

 16 My major concern now is that we

 17 recognize the ways in which our actions interfere

 18 with the health of planet earth and that we set up

 19 standards and policies which can correct the

 20 damage done through corporate greed and poor

 21 government regulation.

 22 Today by virtue of various forms of news
 211

 1 media, we know very quickly about the extensive

 2 damage coal ash sites are causing to our drinking

 3 water.

 4 An August 26, 2010, report states that

 5 now nearly 140 coal ash sites have proven water

 6 pollution problems. Earth Justice, the

 7 Environmental Integrity Project, the Sierra Club

 8 offer data that in 39 of the existing coal ash

 9 dumps in 21 states, water is contaminated with

 10 arsenic and other heavy metals.

 11 The August report builds on a February

 12 report that similar contamination was found in an

 13 additional 31 coal ash dump sites by Earth Justice

 14 EIP. That combined with what EPA has already

 15 indicated in terms of water contamination, we end

 16 up with nearly 140 sites in 34 states.

 17 I am aware of the technological remedies

 18 taken by corporations to scrub and concentrate the

 19 coal ash and to bag it in a material resistant to

 20 leaks, and I am aware that this is touted as a

 21 solution to the environmental damage reported by

 22 EPA and other groups.
 212

 1 I also observed firsthand the results of

 2 mountaintop removal in Tennessee and the impact of

 3 the spill of the wet ash into the Emory River near

 4 Knoxville a new years back. Even though scrub

 5 techniques have concentrated the ash, the effects

 6 of leakage is too risky.

 7 In my mind there's no such thing as

 8 clean or cheap coal. The toll is too risky in

 9 human terms and planetary destruction. Therefore,

 10 I urge EPA to go for the very strongest

 11 restrictions and to shape the legislation around

 12 Subtitle C option that you have proposed. This is

 13 a moral imperative as I see it.

 14 Thank you.

 15 MS. DEVLIN: Thank you. Number 55,

 16 please.

 17 MS. ORF: Thank you. My name is Dianna

 18 Orf. I'm here representing the Colorado Mining

 19 Association. Background on the Colorado Mining

 20 Association can be found in our written comments.

 21 CMA's statement today is limited in

 22 scope. We plan to submit more detailed written
 213

 1 comments prior to the September (sic) 20th

 2 deadline.

 3 CMA supports EPA's preamble to the

 4 proposed rule which states that it is not

 5 proposing to address the placement of CCRs in

 6 mines or in non-minefill uses of CCRs at coal mine

 7 sites in the action.

 8 We believe this is an appropriate

 9 limitation and reflects prior findings of the

 10 National Academy of Sciences which in 2006

 11 recommended that the federal Office of Surface

 12 Mining, or OSM, and its state partners under the

 13 Surface Mining Control and Reclamation Act take

 14 the lead in developing new national standards for

 15 CCR use in mines because the framework is already

 16 in place to deal with these mine- related issues.

 17 CMA believes that the EPA should

 18 continue to defer the issue of CCR placement in

 19 mines to OSM because of OSM's unique expertise and

 20 ongoing role in mine regulation.

 21 CMA is concerned that the intention to

 22 defer the issue to OSM requires clarification in
 214

 1 the text of the proposed regulation. The

 2 definition of minefill in the preamble is vague

 3 and does not adequately reflect non-minefill uses

 4 of CCRs, which EPA states is not regulating in the

 5 proposal.

 6 Also, only in the proposed Subtitle C

 7 regulations does it specifically exclude

 8 minefilling operations. The regulations, however,

 9 do not contain a definition for the term

 10 "minefilling." It appears that EPA intends for

 11 other non-minefilled uses at coal mines to be

 12 exempt from the regulation; however, it's unclear

 13 from the regulatory text.

 14 There's no similar exclusions, although

 15 there should be, under the proposed Subtitle D

 16 nonhazardous waste regulations. Further, EPA's

 17 definition of CCR landfill under both proposals

 18 only expressly excludes underground mines and

 19 fails to address surface mines.

 20 Clarification is necessary in the

 21 preamble and the final regulatory text that

 22 placement of CCRs in mines and other non-minefill
 215

 1 uses of CCRs at both underground and surface mines

 2 -- coal mines are all excluded from the rule

 3 requirements in order to avoid confusion and

 4 regulatory uncertainty.

 5 We support the decision not to reverse

 6 the regulatory determinations for beneficial uses

 7 of CCRs, but we are concerned with EPA's

 8 discussion of unencapsulated uses, which is not

 9 defined in the current proposal.

 10 Thank you very much for the opportunity

 11 to talk.

 12 MS. DEVLIN: Thank you. Number 56,

 13 please.

 14 MR. FIORE: Thank you for the

 15 opportunity. My name is Mike Fiore. My family

 16 owns and operates a real estate investment company

 17 and general contracting company in the state of

 18 Colorado that employs over 220 people in an Adams

 19 County enterprise zone.

 20 In the year 2010 these companies are

 21 expected to purchase and recycle over one million

 22 tons of coal combustion residuals, precipitated
 216

 1 calcium carbonate, concrete, asphalt, and clay

 2 soils for beneficial uses such as structural fill,

 3 road base aggregate, asphalt products, and cement

 4 replacement.

 5 Recycling of construction and industrial

 6 residual materials such as those above reduce the

 7 need for mining resources, reduces carbon

 8 emissions resulting from transportation of newly

 9 mined materials, and conserves landfill space.

 10 Since December of '08 we've recycled

 11 over 400,000 tons of CCRs and structural fill in

 12 our industrial real estate developments. This

 13 effort has resulted in a reduced -- reduced

 14 transportation of over 137,000 miles, equivalent

 15 fuel savings of over 27,000 gallons of diesel or

 16 600,000 pounds of carbon emissions.

 17 Additionally, over 400,000 cubic yards

 18 of landfill space and natural resource mining has

 19 been saved due to our use.

 20 Background soil tests and daily test

 21 results of the CCRs are submitted to the State of

 22 Colorado and Adams County to identify the presence
 217

 1 of heavy metals, pesticides, and radionuclides.

 2 In every case, concentration of these substances

 3 within the CCRs has shown to be either nondetect

 4 or less than native soils.

 5 While we have never shown any

 6 constituents that exceed background soils,

 7 additional precautions are taken requiring that no

 8 CCRs are placed in groundwater or within 50 feet

 9 of any natural waterway.

 10 As a contractor, property owner, and

 11 citizen, I'm opposed to ruling CCRs as a hazardous

 12 waste. The proper utilization of CCRs is proven

 13 to reduce environment impact rather than

 14 contribute to environmental damage.

 15 Blanket regulation of all CCRs as

 16 hazardous waste would drastically reduce if not

 17 eliminate valid, responsible beneficial recycling

 18 of these materials. Furthermore, sampling and

 19 testing of the materials in this example has

 20 perpetually shown that the use of CCRs as a

 21 structural fill introduces no hazard greater than

 22 that of background soils.
 218

 1 The evidence in this case and likely in

 2 any others does not support the regulation of CCRs

 3 as a hazardous waste. A ruling of this nature

 4 will likely cause business owners to landfill

 5 millions of tons of construction material and

 6 increase the need for natural resources.

 7 This new hazardous waste stigma has

 8 caused an unnecessary stall in research of new

 9 beneficial uses and a reluctance to pursue other

 10 construction materials recycling by property

 11 owners.

 12 I encourage the EPA to be strongly

 13 supportive of effective and responsible beneficial

 14 uses of CCRs due to the significant environmental

 15 benefits and the high volume of CCRs produced in

 16 the United States.

 17 Thank you.

 18 MS. DEVLIN: Thank you. Number 57,

 19 please.

 20 MS. WIENS: Good afternoon. My name is

 21 Kyla Wiens, and I'm here today representing the

 22 Montana Environmental Information Center in
 219

 1 Helena, Montana.

 2 MEIC strongly supports EPA's proposed

 3 Subtitle C option. Based on our experience in

 4 Montana, it is clear that only the Subtitle C

 5 option will even come close to protecting public

 6 health in Montana's pristine environment and the

 7 devastating effects of this waste stream.

 8 This is especially true now that

 9 Montana's coal-fired power plants are required to

 10 capture a portion of their mercury air emissions

 11 which result in elevated levels of mercury in the

 12 coal ash waste stream.

 13 Many politicians hand-in-hand with the

 14 coal industry argue that states should be allowed

 15 to regulate coal ash, but we know the system will

 16 fail because it has already failed in Montana. In

 17 the early 1990s, Montana exempted coal ash from

 18 state solid waste laws because the waste stream

 19 was already regulated under another law.

 20 A few years later, coal ash was exempted

 21 from that law as well. Currently there is no law

 22 in Montana that regulates coal ash. In 2005 and
 220

 1 again in 2007 MEIC supported bills to reinstate

 2 coal combustion waste as a solid waste under

 3 Montana the law.

 4 In 2005, with extremely strong industry

 5 opposition, the bill was killed on the House

 6 floor. In 2007, it didn't even make it out of

 7 committee. During that time, MEIC participated in

 8 a working group formed by the state Department of

 9 Environmental Quality.

 10 DEQ's goal was to develop rules that

 11 would put the coal industry at ease by allowing

 12 them to help draft the regulations. This was a

 13 great deal for industry, but they weren't

 14 interested and prevented DEQ from moving forward

 15 with any type of rulemaking, no matter how weak.

 16 The bottom line is Montana does not have

 17 the political will to regulate this waste stream.

 18 Experience proves that any proposed state

 19 regulations will be subject to intense political

 20 lobbying resulting in meaningless rules at best or

 21 in all likelihood, no rule at all. This

 22 well-funded lobbying effort will occur in each
 221

 1 state, and the environment will lose.

 2 Montana's groundwater is already being

 3 contaminated under the failed state-driven

 4 regulatory framework. The coal ash ponds at the

 5 enormous Colstrip plants are leaking even though

 6 they are supposedly regulated under Montana's

 7 former regulatory framework.

 8 The owners of the Colstrip and the state

 9 DEQ have know the ash ponds are leaking since

 10 2003. In fact, as the contamination spreads, they

 11 simply turn monitoring wells into recovery wells.

 12 In April 2010, DEQ and the Colstrip

 13 operator reached a tentative agreement that would

 14 let the operator continue to study the problem

 15 without stopping further contamination. MEIC

 16 objected to the proposed agreement. DEQ still

 17 hasn't issued a final decision on what it will do

 18 about these leaking ponds.

 19 It's not fair to place the burden of

 20 enacting and enforcing the law on the public in 50

 21 different states. That is a solution that will

 22 fail. Weak regulations have failed to protect
 222

 1 Montanans. I urge you to adopt the Subtitle C

 2 option.

 3 Thank you.

 4 MS. DEVLIN: Thank you. Numbers 58, 59,

 5 60, and 61, please.

 6 MR. DATTEL: Hello. I'm Clinton Dattel.

 7 I'm a private citizen here in Arvada, Colorado. I

 8 do a lot of experimenting with fly ash, and

 9 cements typically use 50 percent ash in a cement

 10 mix for a new material.

 11 I patent the accelerator for it.

 12 Hopefully we're going to be building houses with

 13 it. If this is deemed a hazardous material, it's

 14 going to be very hard to sell a house if it has 50

 15 percent waste material, and it's deemed hazardous.

 16 For every ton of ash that's used in the

 17 cement buildings, that's a ton of CO2 that is not

 18 put into the air. So deeming it as a hazardous

 19 material and we take that fly ash out of the snap

 20 -- like I said, for every ton there's going to be

 21 a ton more CO2 given out into the air. So there's

 22 always a tradeoff.
 223

 1 That's about it for me. That's okay,

 2 Boss.

 3 MS. DEVLIN: Thank you. 59, please.

 4 MR. SHULMAN: First of all, thank you

 5 for letting me speak. My name is David Shulman.

 6 I'm with Elite Aggregates. I hold six patents for

 7 bottom ash, fly ash, and fly ash uses, and I hold

 8 two patents that are specifically used for

 9 enhancement of bottom ash to make a lightweight

 10 synthetic aggregate.

 11 I am touted throughout the United States

 12 and the world as a keynote speaker for the use of

 13 synthetic or engineered aggregates, and bottom ash

 14 is a very important part of my process.

 15 I'm going to talk, just like the

 16 gentleman before, about the economics of it. If

 17 we have fly ash today and bottom ash -- since my

 18 main concern is the bottom ash -- part of it -- if

 19 it meets TCLP and the RCRA standards as stated in

 20 2009 standards for hazardous waste material, that

 21 means that bottom ash becomes a nonhazardous waste

 22 and beneficial-use material.
 224

 1 If we go and declare that as hazardous

 2 waste material, then we cannot building any

 3 building, any roads, use it in any concrete in the

 4 United States as it stands today, because concrete

 5 under -- cement under the patent of 1809 uses

 6 bottom ash as 80 percent of its material use.

 7 So if you're going to declare bottom ash

 8 a hazardous waste material, then you're going to

 9 declare cement as a hazardous waste material. And

 10 if you're going to declare cement a hazardous

 11 waste material, then you're going to consider

 12 concrete as a hazardous waste material.

 13 And then we can't build. We can't

 14 drive. We can't walk. We can't have buildings.

 15 We can't have the standard of living we have

 16 today.

 17 And then EPA has to go and do the

 18 reclamation of the concrete because it's then

 19 declared a hazardous waste material. So all of

 20 our buildings and houses will be torn down.

 21 Thank you very much.

 22 MS. DEVLIN: Thank you. Number 60,
 225

 1 please.

 2 MR. SMITH: Good afternoon. My name is

 3 Roger Smith, Jr. I'm the president and CEO of

 4 Salt River Materials Group. We have two entities

 5 under our belt, Phoenix Cement Company and Salt

 6 River Sand & Rock.

 7 The company of Phoenix Cement Company

 8 and Salt River Sand & Rock are business entities

 9 -- or government entities -- or divisions of the

 10 Salt River Pima-Maricopa Indian Community, a

 11 federally recognized Indian tribe.

 12 I would like to thank the U.S.

 13 Environmental Protection Agency for holding this

 14 very important public hearing to provide the

 15 opportunity to comment on the EPA's proposed rule

 16 which regulate the disposal of combustion

 17 residues. I address the potential negative

 18 impacts of the hazardous waste designation on our

 19 company.

 20 Phoenix Cement Company is a regional

 21 supplier of coal combustion products, hydraulic

 22 cement and gypsum, based in Scottsdale, Arizona.
 226

 1 Began operating in 1959.

 2 In 1987 Phoenix Cement was purchased by

 3 its current owners, Salt River Pima-Maricopa

 4 Indian Community. Over the past five decade of

 5 our existence our company has undergone many

 6 changes. Upgrades in almost every phase of the

 7 operations have led to not only great improvements

 8 in quality, production, and safety but reduced

 9 environmental impacts and exceptional energy

 10 efficiency.

 11 One of Phoenix Cement Company's

 12 commitment to sustainability and environmental

 13 improvement can be seen in the results of the

 14 modernization of the Clarkdale facility. These

 15 plants -- these plant modifications provided an

 16 increase in production capacity and at the same

 17 time significantly reduced energy consumption and

 18 air emissions per ton of cement produced.

 19 A long-term participant in the U.S.

 20 Protection -- Environmental Protection Agency's

 21 Energy Star program, Phoenix Cement has received

 22 the Energy Star award for the past three years;
 227

 1 2007, '8, and '9.

 2 Phoenix Cement has successfully

 3 beneficially recycled more than 10 millions tons

 4 of CCP, mostly into concrete applications.

 5 Beneficial recycling of CCP of this magnitude

 6 avoids significant disposal issues and saves CCP

 7 from going into landfills, impoundments, and thus

 8 avoiding potential for spillage, leaking,

 9 contamination, or other -- which is a significant

 10 benefit to the environment.

 11 There is no good reason to risk

 12 destroying coal ash recycling. EPA's own proposed

 13 rule acknowledges the new landfill engineering

 14 standards would be essentially the same whether

 15 coal ash is labeled hazardous or not.

 16 Furthermore, new landfill standard actually would

 17 be put in place faster if the hazardous label is

 18 not pursued.

 19 EPA can and should enact new regulations

 20 while encouraging the safe recycling of coal ash

 21 as a preferred alternative to disposal. EPA must

 22 not designate coal ash as --
 228

 1 MR. MILLER: Your time's up.

 2 MR. SMITH: Thank you very much for your

 3 time.

 4 MS. DEVLIN: Thank you. Number 61,

 5 please.

 6 MS. WRANGHAM: Thank you for the

 7 opportunity to offer public comment. My name is

 8 Theresa Wrangham, and I live in Colorado. Today I

 9 speak on behalf of Safe Minds, a nonprofit

 10 organization dedicated to investigating the

 11 connection between mercury exposure and

 12 neurological disorders like autism.

 13 Today America is -- faces a crisis of

 14 epidemic proportions, one that threatens the

 15 livelihood of our country and the core of our

 16 future, and it involves our children. They are

 17 sick.

 18 Coal power burning -- coal-burning power

 19 plants are the largest human-caused source of

 20 mercury emissions to the air in the United States.

 21 Coal combustion residues also contain mercury, a

 22 known neurotoxin that affects human development.
 229

 1 Autism has increased dramatically from

 2 one to two in 10,000 individuals to one to every

 3 110 children today, costing our nation 200 to $400

 4 billion a year. Better recognition of the

 5 disorder or diagnostic substitution fails to

 6 explain this dramatic increase.

 7 ADHD has also reached epidemic

 8 proportions and currently affects approximately

 9 3.5 million children. Asthma has increased 300

 10 percent over the past two decades and kills 4,000

 11 individuals a year. Allergies have increased 400

 12 percent.

 13 When you add up all the numbers, it

 14 comes out to 20 million children or almost

 15 one-third of American children are sick.

 16 Genetics alone cannot explain --

 17 genetics alone is not capable of causing such a

 18 dramatic change in our children's health, and

 19 scientists today agree that it must be a

 20 combination of genetic susceptibility and

 21 environmental factors causing our children to be

 22 so sick.
 230

 1 While there is a cost savings in using

 2 CCPs, there is also a cost that must be placed on

 3 the sick children and the impacts and associations

 4 of CCPs in that respect.

 5 Recent research by the Arkansas

 6 Children's Hospital Research Institute in 2009

 7 documented children with neuro developmental

 8 disorders like autism are more vulnerable to

 9 environmental pollutants like mercury because they

 10 have lower levels of glutathione, the body's

 11 natural defense for excreting environmental

 12 pollutants.

 13 This finding is supported by a 2006

 14 study from the University of Texas Health Science

 15 Center which found that for every thousand pounds

 16 of environmentally released mercury there was a 43

 17 percent increase in the rate of special education

 18 services and a 61 percent increase in the rate of

 19 autism.

 20 Environmental exposures like mercury, as

 21 I have mentioned, known to be associated with

 22 autism, can occur from coal ash. These exposures,
 231

 1 even in minute amounts, are especially damaging to

 2 infants and children and can have lifelong adverse

 3 neurological health effects.

 4 As a parent of two children, one with

 5 asthma and one with autism, and in representing

 6 Safe Minds, we ask the EPA to please help us

 7 protect our nation's most valuable resource, our

 8 children. We would like you to regulate the

 9 disposal of toxic coal ash in a manner consistent

 10 with hazardous waste.

 11 Thank you.

 12 MS. DEVLIN: Can I have Numbers 223,

 13 224, and 225, please.

 14 MR. BENELY: My name is Delmar Benely.

 15 I live here in Denver. I think that coal ash

 16 ought to be -- ought to be regulated to the

 17 strictest possible way it can. The lady before me

 18 spoke very good, and I second that.

 19 You know, we put that darn stuff in road

 20 fill and fertilizer and all kinds of ways and

 21 string it around all over, and God knows what --

 22 what the results are. We need to regulate and
 232

 1 know what it's doing.

 2 Thank you.

 3 MS. DEVLIN: Thank you. Number 224,

 4 please.

 5 MS. PARKIN: Hello. My name is Micah

 6 Parkin. I'm the Colorado and southwest regional

 7 organizer of 1Sky, a national climate and clean

 8 energy campaign. I'm also mother of two little

 9 girls living within five miles of the Valmont Coal

 10 Plant in Boulder, Colorado, and its own on-site

 11 coal ash storage area, which reported a

 12 25-cubic-yard spill into water reservoirs by the

 13 plant in 2008.

 14 First of all, I want to thank you so

 15 much for proposing the first-ever national rules

 16 to ensure the safe disposal and management of coal

 17 ash from coal-fired power plants. I commend you

 18 for your efforts to ensure the safe management of

 19 coal ash.

 20 As you note on your website, without

 21 proper protections, the contaminants in coal can

 22 leach into groundwater and often migrate to
 233

 1 drinking water sources posing significant health

 2 public concerns -- public health concerns.

 3 I'm here today to encourage you to pass

 4 a rule treating toxic coal ash with greater

 5 precaution under Subtitle C, creating a

 6 comprehensive program of federally enforceable

 7 requirements for waste management and disposal. I

 8 believe this is the most appropriate action to

 9 protect public health and the environment.

 10 Coal ash, which is laden with mercury,

 11 arsenic, lead, radioactive elements, and other

 12 toxins, poses serious threats to our drinking

 13 water and to the health of people who live near

 14 the 40 storage sites in Colorado.

 15 Those burning coal and storing the ash

 16 should bear the responsibility of assuring the

 17 public safety from these toxins. Communities in

 18 which these facilities reside should not have to

 19 live in fear of their drinking water being

 20 contaminated, spills destroying their homes, and

 21 making their communities unlivable, or wind-swept

 22 ash poisoning their children. These communities
 234

 1 already bear the burden of the pollution existing

 2 in the coal plant's towers.

 3 For these reasons and on behalf of the

 4 thousands of 1Sky members and families in this

 5 region, I encourage you to regulate coal ash as

 6 the hazardous waste that it is through Subtitle C.

 7 Thank you very much.

 8 MS. DEVLIN: Thank you. Number 225,

 9 please.

 10 MR. DUNCAN: Hi. My name is James

 11 Duncan, a name given to me by my parents. It has

 12 some cultural history and significance, but it's

 13 just a symbol to represent me, an organism of the

 14 earth.

 15 As an organism, unlike my name, we have

 16 a history that goes back as far as history itself.

 17 How did we get here? Through naturally occurring

 18 elements, pure water, good food. Not soft drinks,

 19 coffee, or beer, but water. That's what got us

 20 here, and for us to be irresponsible to affect or

 21 terminate the lineage of any organism would be a

 22 tragedy of grave proportions.
 235

 1 We are paving the road for our progeny.

 2 The foundation they stand on are our shoulders,

 3 level and strong.

 4 A philosopher once said, "The wise man

 5 knows he knows nothing." Perhaps it was Socrates

 6 or Plato or Aristotle. I don't know.

 7 Please be prudent in your decisions as

 8 the ramifications reach far beyond what any of us

 9 will ever know. My recommendation is to adopt

 10 Subtitle C.

 11 Thank you.

 12 MS. DEVLIN: Thank you. Did Numbers 62

 13 or 63 come into the room? Then could I please

 14 have 64, 65, 66, and 67.

 15 MS. SHOPE: Hi. My name is Nina Shope.

 16 I'm here as a private citizen. I believe that

 17 coal ash should be regulated under Subtitle C. It

 18 makes perfect sense to consider coal ash as a

 19 hazardous waste seeing as it's full of

 20 carcinogens, toxic chemicals, and heavy metals.

 21 And according to Scientific American, it

 22 also contains high levels of radioactive uranium
 236

 1 and thorium, which can leach into soil and

 2 groundwater.

 3 We need the federal government to

 4 regulate coal ash so that all states are required

 5 to treat it and dispose of it in the same way. It

 6 is the federal government's duty to protect people

 7 against powerful money interests such as the coal,

 8 oil, and gas lobbyists. It is our only means of

 9 protection.

 10 We've already seen states shirking their

 11 responsibilities. Most states don't monitor --

 12 don't require monitoring of drinking water near

 13 coal ash waste sites. The few tests that have

 14 been done show clear contamination of water with

 15 arsenic, lead, and heavy metals. In Hatsfield

 16 Ferry, Pennsylvania, the water tested at 341 times

 17 the safe level of arsenic.

 18 Coal ash poses clear dangers to human

 19 health, wildlife, and water supplies. Clean

 20 drinking water is a vanishing and precious

 21 resource and will only become more so as climate

 22 change progresses.
 237

 1 After the gas and oil industries got

 2 exemptions from the Clean Air and Clean Water acts

 3 in 2005, they have been steadily polluting. Water

 4 is under assault from industry with practices like

 5 hydro fraccing poisoning entire watersheds and

 6 systems.

 7 When coal ash is improperly stored,

 8 heavy rains and floods can easily spread the

 9 contamination into groundwater supplies.

 10 Regulating coal ash under Subtitle C would limit

 11 where ash can be stored and would require industry

 12 to acquire permits, which serve as crucial

 13 enforcement tools.

 14 Industry argues that regulating coal ash

 15 under Subtitle C will cost the entire industry

 16 more than a billion dollars, but one company alone

 17 made $1.2 billion in profits last year. Also, if

 18 that's the true cost of doing business safely,

 19 industry should pay for it.

 20 The fact is, the more we cover up the

 21 true cost of dealing with coal, including clean-up

 22 and disposal costs, the less chance we have of
 238

 1 moving away from a coal-based economy.

 2 Coal is promoted as a cheap energy, but

 3 when you factor in the cost of proper disposal, it

 4 isn't so cheap after all. People need to know the

 5 real costs of coal, including the cost to public

 6 health. Currently we are subsidizing an industry

 7 that earns billions in profits and poisons the

 8 environment.

 9 The EPA also needs to monitor the

 10 recycling of coal ash which threatens to become

 11 just another profit-making venture for the oil and

 12 gas industry. Coal ash is currently reused in

 13 many products, and more needs to be done to study

 14 the safety of such procedures.

 15 Personally I believe all coal, oil, and

 16 gas operations must be immediately brought under

 17 EPA regulation and made to comply with Clean Air

 18 and Clean Water acts. Industry has shown

 19 repeatedly that its concern is profit, not safety.

 20 The jobs created are not worth the

 21 permanent damage done to drinking water supplies

 22 and human health. With the industry pouring money
 239

 1 into misleading commercials and inundating the

 2 public with false claims, Americans need to be

 3 aware of the true costs of coal.

 4 Thanks.

 5 MS. DEVLIN: Thank you. Number 65,

 6 please.

 7 MR. SAWTELL: I'm Reverend Peter

 8 Sawtell, the executive director of Eco-Justice

 9 Ministries. Our agency works with Christian

 10 churches across the United States to build

 11 awareness, commitment, and action at the

 12 intersection of social justice and ecological

 13 sustainability.

 14 I speak in favor of the option proposed

 15 under Subtitle C which would provide the strongest

 16 standards and the highest level of enforcement for

 17 the storage of coal combustion residuals.

 18 My support for proposal C is grounded in

 19 two closely related moral principles:

 20 Environmental justice and eco-justice.

 21 Environmental justice does not allow

 22 disproportionate impacts from pollution on
 240

 1 communities of color or that are low income.

 2 Those unequal environmental impacts were first

 3 documented in a 1987 study from the United Church

 4 of Christ, Toxic Wastes and Race in the United

 5 States. Church leaders are among those that have

 6 decried the immoral practice of dumping hazardous

 7 substances in disempowered communities.

 8 In the case of toxic materials found in

 9 coal ash, which can cause neurologic disruption

 10 and cancer, the unjust damage to individual lives,

 11 family, and communities is long-lasting and

 12 utterly unacceptable.

 13 Last spring's detailed coal ash report

 14 from Earthjustice documents the environmental

 15 justice factors of that pollution. A majority of

 16 the 31 sites in their report are located in

 17 low-income communities.

 18 It is imperative that the strong

 19 provisions of Subtitle C be implemented to address

 20 environmental justice impacts.

 21 I also support Subtitle C because of the

 22 ethical principal at the heart of my agency's
 241

 1 name, Eco-Justice. Eco-Justice seeks the

 2 well-being of all humankind on a thriving earth.

 3 It holds together commitments to racial and

 4 economic justice and ecological health.

 5 From the perspective of Eco-Justice,

 6 toxic waste is a moral problem even if the impacts

 7 are not disproportionate. It is wrong to poison

 8 anybody.

 9 From the perspective of Eco-Justice, the

 10 issue of toxic coal ash is not only a human

 11 problem. The well-documented impacts on wildlife

 12 and ecological systems are also a matter of moral

 13 concern.

 14 From the perspective of Eco-Justice, the

 15 intergenerational impacts of coal ash are

 16 important. Far into the future heavy metals will

 17 persist in groundwater and stream sediments if

 18 coal ash is not contain under rigorous standards

 19 and enforcement.

 20 Environmental justice demands protection

 21 for people among us who have so often been

 22 oppressed, excluded, and disempowered.
 242

 1 Eco-Justice demands the safe storage of coal ash

 2 on behalf of all God's creations; humans and other

 3 than human, now and into the future.

 4 My agency's expertise is moral witness

 5 about matters of ecological health and social

 6 justice. The weak option under Subtitle D is

 7 ethically deficient in preventing and protecting

 8 communities from the hazards of coal ash.

 9 I call for the implementation of the

 10 strong Subtitle C option.

 11 MS. DEVLIN: Thank you. Number 66,

 12 please.

 13 UNIDENTIFIED SPEAKER: As an attorney

 14 retired from state government, I appreciate your

 15 hosting this hearing. I know how difficult it is

 16 to protect the public within the limiting legal

 17 and political structures. Yet the public is in

 18 danger and looks to you for protection. Subtitle

 19 C is the stronger measure. Please adopt it.

 20 As a mother, I urge you to protect the

 21 health of my child and all children. There must

 22 be enough water, good quality, safe water to
 243

 1 nourish families, and it's ever more rare.

 2 I grew up in a fossil fuel industrial

 3 town near the Gulf Coast. Our drinking supply was

 4 groundwater. My youngest sister, a gifted campus

 5 minister at the University of Houston, born in

 6 1960, died in 1996 from cancer.

 7 We cannot know what caused the cancer

 8 that killed her. However, I do know that many

 9 cancer- causing pollutants, some 100 times more

 10 radioactive than emitted from a nuclear power

 11 plant and producing the same amount of energy,

 12 come from coal ash.

 13 Take arsenic, for example. Even if its

 14 concentration in drinking water meets United

 15 States standards, it causes liver, lung, kidney,

 16 or bladder cancer in more than 27,000 United

 17 States citizens at any given time. Yet arsenic

 18 leached from coal ash into water is found at

 19 levels 1,800 times higher than federal drinking

 20 water standards. Water-borne arsenic also

 21 accumulates in freshwater plants and bivalves and

 22 then into our food supply.
 244

 1 As a woman of faith, I recall the words

 2 of Jesus, "Who among you, if a child asks for

 3 bread, would give him a stone to eat?" I think he

 4 would ask the EPA, "Who among you, if a child

 5 asked for water, would give her arsenic to drink?"

 6 And don't be fooled by the term

 7 "beneficial use." Beneficial to whom? Should

 8 this stuff be put on fields as fertilizer and end

 9 up on our dinner tables or washed downstream into

 10 our rivers to add further insult to the dead zone

 11 at the mouth of the Mississippi River?

 12 Finally, the earth is powered by the

 13 sun. Instead of disrupting the carbon

 14 sequestration of centuries in the form of buried

 15 coal, instead of gobbling up precious water by

 16 mining coal, the air by burning it, and our

 17 children's health by drinking the water soaked

 18 into its offal, we would get our power directly

 19 from the sun.

 20 I implore you to stop poisoning the

 21 ground or surface water by unsafe, leaky, and

 22 improperly monitored coal ash ponds or
 245

 1 unencapsulated beneficial use. Please adopt the

 2 stronger of the two measures under consideration.

 3 To protect the health of our children, enact

 4 Subtitle C.

 5 Thank you for listening.

 6 MS. DEVLIN: Thank you. Number 67,

 7 please.

 8 MR. ROLDAN: My name is Vincente Roldan.

 9 I am a member of the board of directors of the

 10 Colorado Interfaith Power and Light. Colorado

 11 Interfaith Power and Light is a project of the

 12 Colorado Nonprofit Development Center, a 501(c)(3)

 13 organization that provides fiscal sponsorship and

 14 services and functions as a nonprofit incubator.

 15 The mission of the Colorado Interfaith

 16 Power and Light is to educate and energize

 17 Colorado's diverse faith communities to care for

 18 God's creation. We collaborate with other groups

 19 working on environmental issues from a faith

 20 context and the broader environmental arena.

 21 I would like to thank the EPA for

 22 selecting Denver as a site to hear public
 246

 1 testimony concerning coal ash as a hazardous waste

 2 material and how coal ash should be regulated.

 3 Colorado Interfaith Power and Light

 4 supports Subtitle C. EPA efforts to clean up past

 5 mistakes of the improper disposal of hazardous

 6 waste materials are well noted in the Denver metro

 7 area, such as Globeville, the former Lowry Air

 8 Force Base, Buckley Field, Platte Park to mention

 9 a few. Residents within the Denver metro area are

 10 surrounded by these former and present dump sites.

 11 Today we are specifically talking about

 12 avoiding mistakes of the past and considering the

 13 proper storage and disposal of coal ash, a well-

 14 documented waste byproduct of the use of coal.

 15 Carbon combustion residuals, CCR, is the second

 16 highest waste stream in the United States, and

 17 Colorado is no exception. Subtitle C is by far

 18 and above the best possible way to regulate

 19 storage and disposal of CCR from coal ash.

 20 One specific area of concern, we ask the

 21 EPA would take a closer look at the unencapsulated

 22 beneficial use of coal ash as landfill for our
 247

 1 playgrounds, golf course, agriculture fertilizers,

 2 and building construction fill material.

 3 The health risks of the improper storage

 4 and disposal of coal ash are well documented in a

 5 variety of EPA studies and reports both past and

 6 current.

 7 Colorado Interfaith Power and Light

 8 believes that caring for God's creation is caring

 9 for both people and the planet. People and all of

 10 God's other living creatures deserve clean air,

 11 water, soil to sustain ourselves today and for

 12 generations to come.

 13 Yet rather than placing human health as

 14 the highest priority of concern in dealing with

 15 the storage and disposal of hazardous waste such

 16 as coal ash, the highest priority is given to

 17 financial costs. The production costs of the coal

 18 providers, the energy providers are limited to

 19 only a small portion of the total life-cycle

 20 energy cost. These providers do not --

 21 MS. DEVLIN: Sir, your time is up.

 22 Thank you. Numbers 63 -- as I understand you're
 248

 1 here -- 68, 69, and Number 226, please.

 2 MR. SQUILLACE: Good afternoon. My name

 3 is Mark Squillace. I'm a professor of law and the

 4 director of the Natural Resources Law Center at

 5 the University of Colorado. I'm here, however,

 6 just to speak for myself on this matter. I

 7 appreciate time is short, and so let me try to

 8 quickly get in three comments.

 9 First, I want to make the point that EPA

 10 really should think about the importance of

 11 discouraging disposal at all, prohibiting disposal

 12 unless someone can show that they've made a

 13 good-faith reasonable effort to provide for

 14 beneficial reuse.

 15 Second, while I'm not particularly

 16 concerned about whether these materials are

 17 regulated and hazardous or not, I do believe that

 18 it's necessary that EPA impose some form of

 19 mandatory federal controls on the disposal of CCRs

 20 if that's to happen.

 21 And finally, if I have time, I'll try to

 22 make a couple suggestions about improving the
 249

 1 rules.

 2 I want to make a point that I think is

 3 often lost in this debate about the reuse of these

 4 CCR materials. The problem seems to me one of

 5 market failure; that is, we have these materials

 6 that are valuable for use in concrete and cement

 7 and other materials that are usable in wallboard,

 8 and yet more than half of these materials are now

 9 simply disposed of in landfill or in impoundment.

 10 That's a fundamental problem, and I

 11 think that results from two things. One is that

 12 we currently don't impose any controls in many

 13 states on the disposal of these things, and so the

 14 externalities associated with that disposal are

 15 not captured by the marketplace. Hopefully these

 16 rules will fix that problem.

 17 But there's another really important

 18 aspect that EPA really needs to consider here, and

 19 that is the cost associated with mining virgin

 20 limestone materials that will be used essentially

 21 to substitute for concrete and for gypsum to the

 22 extent that those materials will have to be mined
 250

 1 because they're replacing materials that otherwise

 2 could have been used for this purpose.

 3 I'd really like to suggest that -- since

 4 my time is short, that EPA, think about working

 5 with the Department of Transportation about coming

 6 up with some minimum content standards for

 7 federal-aid highways for fly ash.

 8 It strikes me that there's a national

 9 market that could easily be tapped and would

 10 greatly increase demand for fly ash in a way that

 11 would make it unnecessary to dispose of many of

 12 these materials, and I think that would be sort of

 13 a win-win for everybody.

 14 I think something similar could be done

 15 with gypsum in the context of federal construction

 16 projects around the nation.

 17 Just one last point about the -- because

 18 I don't have much time -- about the standards that

 19 you have now. I hope you'll look at the study

 20 that was done several years ago. I was on a

 21 national academies committee, a study called

 22 "Managing Coal Combustion Residue in Mines."
 251

 1 There's are a couple things in that

 2 study, recommendations about how to manage CCRs,

 3 that are not included in the EPA recommendations,

 4 including site characterization and waste

 5 characterization. Those are important issues that

 6 I hope you'll consider. And I know you're going

 7 to tell me I'm out of time, so I'll stop.

 8 Thank you.

 9 MS. DEVLIN: Thank you. Number 68,

 10 please.

 11 MS. HOPKINS: Thank you. My name's

 12 Joanna Hopkins. I represent Everist Materials.

 13 We are a family-run company with over 100 years'

 14 experience in the sand and gravel, ready mixed,

 15 and asphalt industry. We have operations in Grand

 16 County, Summit, Park, and Clear Creek counties,

 17 and our market base is mainly the western slope of

 18 Colorado.

 19 We're very proud to offer a high recycle

 20 content ready mix. We currently offer 20 percent

 21 fly ash content. We are concerned about a stigma

 22 that could come with a hazardous designation of
 252

 1 fly ash.

 2 We do appreciate past events and

 3 concerns. We have proper containment. We treat

 4 our disposal -- we don't dispose. We recycling.

 5 So it's all properly contained on-site. We do ask

 6 that a hazardous designation is not put on fly

 7 ash.

 8 Thank you.

 9 MS. DEVLIN: Thank you. Number 69,

 10 please.

 11 MR. ZABARTE: Good afternoon. My name

 12 is Ian Zabarte. There's an error on the list of

 13 who I represent. I am here as an individual. I

 14 am Western Shoshone, and our concern is for our

 15 past exposure from atmospheric weapons testing.

 16 The radiation has affected our

 17 communities, and when we consider that the west

 18 coal that is used in the Valmy plant outside of

 19 Reno, which is in Western Shoshone treaty

 20 territory, and the technologically enhanced,

 21 naturally occurring radioactive material can be up

 22 to a hundred times greater.
 253

 1 And when we consider the biological

 2 effects of ionizing radiation, 2006 report, the

 3 BIER seven from the National Academy of Sciences,

 4 we can not tolerate any increase risk of exposure

 5 from any source including from coal-fired power

 6 plants and the amounts of radiation that are

 7 increased in that material.

 8 So we hope that you will consider that

 9 we've borne a disproportional burden for U.S.

 10 nuclear development, and we don't think that we

 11 should continue to bear the burden of risk of

 12 generating electric industry from coal-fired power

 13 plants as well.

 14 Thank you.

 15 MS. DEVLIN: Thank you. Is Number 226

 16 in the room? Thank you.

 17 MR. SHELDON: Thank you. My name is

 18 Paul Sheldon. I'm the senior consultant with

 19 Natural Capitalism Solutions, and I'm here to ask

 20 you to frame this discussion under Subtitle C, not

 21 Subtitle D.

 22 We depend on the EPA to protect the
 254

 1 public health. You must retain that authority.

 2 You can't simply leave this to citizen lawsuits

 3 when it's found that beneficial uses are harmful,

 4 and in that context if you approve beneficial uses

 5 as is proposed, please subject them to the same

 6 requirements of testing for landfilling.

 7 How do you know that it's beneficial?

 8 We thought thalidomide was beneficial. We thought

 9 DDT was beneficial. We have assumed that some

 10 uses of coal ash such as concrete are beneficial.

 11 They may be; they may not be. How do you know?

 12 Please subject beneficial uses to the

 13 same testing as coal ash that goes into landfills,

 14 and please use Subtitle C, which retains your

 15 authority to protect the public health.

 16 Thank you very much.

 17 MS. DEVLIN: Thank you. We're going to

 18 take about a five-minute break at this point. So

 19 we'll resume in about five minutes. Thank you.

 20 (Recess)

 21 MS. DEVLIN: If we could have Numbers

 22 72, 73, 74, 77 and 230. So I'm actually calling
 255

 1 five people this time. So Number 72, please.

 2 MR. CHRISTIAN: Thank you. Hello. I'm

 3 Steve Christian, environmental manager with PPL

 4 Montana. We operate more than 2,000 megawatts of

 5 generating capacity in Montana, including two

 6 coal- fired power plants; the Corette plant in

 7 Billings, Montana, and the Colstrip plant where

 8 I've lived for 26 years.

 9 Coal combustion residuals from these

 10 plants have been regulated effectively since 1980

 11 as a nonhazardous waste by the Montana Department

 12 of Environmental Quality under Montana's Major

 13 Facilities Siting Act.

 14 Colstrip, a zero-discharge facility, has

 15 some seepage from wastewater ponds. This was not

 16 unexpected based on seepage control measures

 17 implemented when the ponds were built. We've

 18 invested tens of millions of dollars in upgrades

 19 to wastewater facilities, including installation

 20 of synthetic liners and implementation of an

 21 innovative pacing process that solidifies coal ash

 22 scrubber sludge to help prevent future seepage.
 256

 1 Additionally we are capturing the pond

 2 seepage and returning it to our wastewater system.

 3 Recently PPL Montana agreed to enter into an

 4 administrative order on consent with Montana DEQ

 5 that establishes a comprehensive process to

 6 investigate and remediate groundwater seepage from

 7 wastewater facilities at the Colstrip plant.

 8 I would like to point out that coal

 9 combustion residuals from PPL Montana plants do

 10 not meet EPA's criteria of toxicity used to define

 11 hazardous waste. The level of metals is so low as

 12 to be nondeductible.

 13 Bottom line is that no impacts from

 14 heavy metals have been found in drinking water

 15 around the plant, and we continue to work with

 16 Montana DEQ on seepage issues.

 17 PPL Montana supports federal regulation

 18 under the RCRA Subtitle D nonhazardous waste rule.

 19 Subtitle D regulation will provide for

 20 environmentally safe disposal and avoid

 21 significant environmental costs that would result

 22 from Subtitle C hazardous waste regulation.
 257

 1 Subtitle C regulation would severely

 2 limit and most likely eliminate beneficial uses

 3 that provide thousands of jobs and real

 4 environmental benefits. Without beneficial-use

 5 option, we will be forced to dispose of all CCRs.

 6 The problem is that Montana has no

 7 permanent -- permitted commercial Subtitle C

 8 landfills, and that leaves us with only two

 9 options; try to permit a hazardous landfill at our

 10 site or find a Subtitle C landfill off-site which

 11 would be out of state.

 12 In addition, Subtitle C regulation may

 13 require Colstrip to completely change its design

 14 and operation. The plant is designed to reuse

 15 wastewater and storm water and plant processes use

 16 water ponds to contain the water. Regulation

 17 under Subtitle C may not allow continued use of

 18 ponds for wastewater storage.

 19 In closing, PPL Montana strongly opposes

 20 Subtitle C hazardous waste regulation and requests

 21 EPA to regulate CCRs under Subtitle D prime option

 22 that integrates with current state regulatory
 258

 1 programs.

 2 This will create a reasonable and

 3 effective regulatory program that protects the

 4 environment, retains options for beneficial use,

 5 allows companies like PPL Montana to provide

 6 hundreds of good-paying, family-sustaining jobs.

 7 Thank you.

 8 MS. DEVLIN: Thank you. Number 73,

 9 please.

 10 MR. JOHNSON: Good afternoon. My name

 11 is Kris Johnson, owner of AspenGold Consulting

 12 located in Goodland Park, Colorado. My company

 13 specializes in assisting utilities with research

 14 implementation of beneficial uses and programs for

 15 coal combustion products consisting of fly ash,

 16 bottom ash, flue gas desulfurization, and FGD

 17 gypsum.

 18 I've been in the coal ash business --

 19 coal combustion industry business since 1989 and

 20 have been responsible for successful completion of

 21 a multitude of coal combustion beneficial projects

 22 ranging from large industrial park developments,
 259

 1 community improvement projects such as public

 2 parks, playgrounds, and schools, county and state

 3 roadway- improvement projects, construction

 4 products, concrete and concrete block and brick

 5 construction, agricultural products, agricultural

 6 applications of CCPs and various recycling

 7 programs.

 8 All of these projects utilize millions

 9 of tons of coal combustion product, diverting them

 10 from municipal landfill disposal. All of these

 11 projects I have been involved in and numerous

 12 others mentioned today and at the other public

 13 hearings across the country would not have been

 14 possible without the current regulations allowing

 15 industry to recycle CCPs in beneficial and

 16 meaningful methods.

 17 Subtitle D, as it stands today, allows

 18 industry to willingly participate in beneficial

 19 projects as a way of diverting portions of their

 20 CCPs into projects which contribute significantly

 21 to the reduction of the greenhouse gas emissions

 22 and preservation of our natural resources by
 260

 1 conserving virgin materials otherwise used for

 2 construction and product purposes.

 3 Any change to the current CCP

 4 regulation, such as the proposal for Subtitle C

 5 designation, will cripple the CCP industry by

 6 eliminating the useful and beneficial utilizations

 7 of CCPs in many applications.

 8 During my career, I have been involved

 9 in marketing CCPs, explaining their benefits,

 10 their engineering properties, and their actual

 11 dollar savings compared to other construction

 12 materials on the market today.

 13 As in any attempt to market an industry

 14 byproduct, the marketing of such is not always an

 15 easy sale. With the designation of Subtitle C

 16 hazardous waste or even a special waste

 17 designation, this will make the marketing of CCPs

 18 extremely difficult; and for many, if not all,

 19 beneficial applications, marketing will be next to

 20 impossible.

 21 In my business I have already seen

 22 utilities delay or cease specific CCP projects for
 261

 1 fear of Subtitle C designation becoming

 2 implemented. My clients are holding back projects

 3 where coal combustion product material would leave

 4 the confines of their property for beneficial

 5 applications. Their hesitancy is due to the

 6 possibilities of long-term litigation from

 7 customers.

 8 The current Subtitle D classification

 9 allows for beneficial utilization of CCPs in a

 10 controlled manner and gives each state regulatory

 11 authority to monitor the use of CCPs in bound or

 12 unbound beneficial applications.

 13 Thank you for your time.

 14 MS. DEVLIN: Thank you. Number 74,

 15 please.

 16 MR. NAZARYK: Good afternoon. I'm Paul

 17 Nazaryk, and I represent San Juan Coal Company,

 18 which operates an underground coal mine in

 19 northwest New Mexico, and we provide coal to the

 20 nearby San Juan Generating Station. In return we

 21 receive coal combustion residuals which we are

 22 using to reclaim a former surface mine on the
 262

 1 property.

 2 Our goal in this reclamation is to

 3 utilize the principles of geomorphic reclamation

 4 to restore the original site topography. And in

 5 2009 we won a U.S. Office of Surface Mining award

 6 for our reclamation in nearby La Plata Mine.

 7 Now, in a previous position, I worked

 8 for the State of Colorado enforcing the hazardous

 9 waste regulations, and as such I have followed

 10 developments in RCRA probably since the 1980s and

 11 very interested in this proposal.

 12 It's often forgotten that one of the

 13 original goals of RCRA, along with protecting

 14 human health and the environment, was actually to

 15 encourage the reuse of the recoverable materials.

 16 Currently, according to the American

 17 Coal Ash Association, approximately 45 percent of

 18 CCR material is recycled or reused in mined land

 19 reclamation. In our view, the final rule should

 20 encourage beneficial use while at the same time

 21 protecting both the public and the environment.

 22 We support the development of national
 263

 1 standards to manage CCR material under RCRA

 2 Subtitle D. We concur with EPA's decision to

 3 exclude the mine placement of CCR material from

 4 this rulemaking. We also agree with EPA and the

 5 2006 National Academy of Sciences study that the

 6 use of CCR material in mined land reclamation

 7 should be regulated by the U.S. Office of Surface

 8 Mining and that these regulations should be

 9 developed jointly by OSM and EPA.

 10 We have a number of detailed comments

 11 which I'll provide, but in the interest of

 12 brevity, I'll just sort of highlight those

 13 comments right now.

 14 Number 1, we're opposed to efforts to

 15 designate CCR material as a hazardous waste.

 16 Management of this material as a hazardous waste

 17 is clearly not justified given the level of risk

 18 posed by the material. Such a designation would

 19 only discourage its recycling beneficial use with

 20 a stigma of a hazardous waste label.

 21 Number 2, there's a great deal of

 22 ambiguity in the actual language of the proposal
 264

 1 that needs to be addressed. For example, the

 2 proposed definition of CCR landfill would exempt

 3 the placement of CCR material in underground mines

 4 but not its use in reclamation of the surface

 5 mines.

 6 Number 3, EPA has taken the position

 7 that mine placement of CCR material is not a

 8 beneficial use. We disagree with that assessment.

 9 In our view, use of this material replaces our

 10 need to disturb additional land to obtain fill

 11 material to reclaim our surface mines.

 12 And finally, we do not believe that

 13 there's a need to regulate unencapsulated

 14 beneficial uses of this material. This would only

 15 work to discourage its current widespread use in

 16 agriculture, road construction, as a building

 17 material, and as an ingredient in concrete.

 18 Thank you for the opportunity to comment

 19 on this proposal.

 20 MS. DEVLIN: Thank you. Number 77.

 21 MS. LOVINS: My name is Hunter Lovins.

 22 I am a professor of business Presidio School of
 265

 1 Management. I am here to support Subtitle C.

 2 My grandfather was a coal mine operator.

 3 I know the coal industry. I know that it is

 4 dirty. It is dangerous. I know that it is

 5 hazardous as coal. It is hazardous as smoke. It

 6 is hazardous as fly ash.

 7 Your job as the EPA is to protect the

 8 public. Designating this for what it is, a

 9 hazardous material, is what the public needs. It

 10 is your job.

 11 Coal ash is radioactive. It should be

 12 tested as such. It should be handled as such.

 13 The states have not done a good job of handling

 14 this material, protecting the public. This is

 15 your job. This is an interstate pollutant. It

 16 doesn't stay put.

 17 Please, those of us who depend upon the

 18 federal government for our protection are here

 19 today to ask you to designate this as Subtitle C.

 20 Thank you very much.

 21 MS. DEVLIN: Thank you. Number 230, are

 22 you in the room? Number 75, 79, and 81. How
 266

 1 about Numbers 231, 232, and 233. Please come up.

 2 MS. ROBERTS: Patricia Roberts, Golden,

 3 Colorado. I just biked down from Lookout Mountain

 4 where I live. I'm here to support more

 5 regulations for coal ash. I think that the

 6 stricter we can be, the better.

 7 Who's paying for all the spills of coal

 8 ash in the other states that have taken place in

 9 the last few years? It's never the coal industry.

 10 It's the public, the federal government, the local

 11 and state governments.

 12 Everybody always says coal is really

 13 cheap, and that's why we need coal-fired

 14 electricity, and I think coal should be really

 15 expensive because it's not -- we're not paying the

 16 true cost of coal- fired electricity.

 17 And if regulation makes it more

 18 expensive, then I think that's an -- not only do

 19 we need the regulation for safety, but we need to

 20 reflect the true cost of coal to our society, and

 21 our health.

 22 And I haven't heard the other speakers
 267

 1 all day. So I don't know if I'm repeating, but I

 2 would like very tough regulation of coal ash.

 3 Thank you.

 4 MS. DEVLIN: Thank you. Number 233.

 5 MR. HISLOP: I'm Alfred Hislop from

 6 Golden, Colorado. I've noticed recently that

 7 there are quite a few people who say that we

 8 really can't afford to have tougher regulations.

 9 It hurts the economy. And people are concerned

 10 about the great debt that we may be piling up.

 11 However, I think people do not realize

 12 the great debt that we actually are piling up with

 13 respect to pollution in the atmosphere and all

 14 over the earth, and that debt is probably of more

 15 concern than the economic debt. So I definitely

 16 would like to see tougher regulation of coal ash.

 17 Thank you.

 18 MS. DEVLIN: Thank you. Are Numbers 79

 19 and 81 in the audience? Is anybody in the

 20 audience with a number under 80 who I have not

 21 called, or any walk-in? All right.

 22 Is there anyone in the audience --
 268

 1 anyone in the audience who's registered and has a

 2 time to speak or wishes to speak? Okay. Could

 3 you please come forward and give us your numbers?

 4 Take a seat in the chairs. Unfortunately, I don't

 5 have a list. I don't have a list if you signed

 6 in.

 7 MR. SCHIEFFELIN: Good afternoon. My

 8 name's Joe Schieffelin. I'm manager of the solid

 9 hazardous waste program in the hazardous materials

 10 and waste management division within the Colorado

 11 Department of Public Health and Environment.

 12 My program is authorized by EPA to

 13 implement all aspects of the hazardous waste

 14 program, the RCRA Subtitle C program. We are

 15 approved by EPA as having an equivalent solid

 16 waste program to the national standards, same as

 17 the RCRA Subtitle D program. Thank you for the

 18 opportunity to share our perspectives on this

 19 issue.

 20 Our program opposes regulation of coal

 21 combustion residuals under hazardous waste

 22 authorities. Our program supports continued
 269

 1 regulation of coal combustion residuals under

 2 state solid waste authorities.

 3 We would prefer no changes to the

 4 current regulator construct for coal combustion

 5 residuals, but the three -- but of the three

 6 options under consideration, we strongly prefer

 7 the RCRA Subtitle D prime option.

 8 As background, the solid and hazardous

 9 waste program regulates all disposal and

 10 beneficial reuse of coal combustion residuals in

 11 Colorado. We have representative analytical data

 12 on the coal combustion residuals produced in

 13 Colorado, and no data has ever indicated levels of

 14 contamination close to those that would make the

 15 residuals hazardous waste.

 16 We have groundwater monitoring data

 17 around coal combustion residuals dewatering and

 18 disposal areas, and no data indicates a release to

 19 groundwater has occurred.

 20 However, if a release were to occur, we

 21 have enforcement authority to rapidly and

 22 effectively deal with noncompliant situations,
 270

 1 including releases to soil, groundwater, surface

 2 water, and exposures to people. This includes

 3 administrative order authority with injunctive

 4 relief, corrective action authority, and penalties

 5 up to $10,000 per day per violation. Colorado

 6 actively uses these authorities in implementation

 7 of the solid waste program.

 8 Through this same regulatory construct,

 9 we safely and effectively regulate municipal solid

 10 waste every day, a waste stream with higher

 11 hazards than coal combustion residuals because it

 12 includes household hazardous waste, heavy metals,

 13 and organics, acidic, and alkaline materials.

 14 A unique aspect of coal combustion

 15 residuals is the large amount that is never

 16 landfilled but is beneficially reused. About 60

 17 percent of the coal combustion residuals produced

 18 in Colorado are beneficially reused.

 19 We know that EPA is trying to avoid

 20 impacts to this reuse, but the best way to do that

 21 is to preserve the status quo, leaving coal

 22 combustion residuals as solid waste. Designation
 271

 1 of coal combustion residuals as hazardous waste

 2 will stigmatize these materials and raise

 3 uncertainty and liability concerns with those who

 4 currently reuse them.

 5 Widespread reuse of a hazardous waste

 6 somehow is difficult to reconcile with the word

 7 "beneficial." EPA's assertion that a hazardous

 8 waste designation of coal combustion residuals

 9 will actually enhance the amount of beneficially

 10 reused is, we believe, erroneously based on other

 11 much smaller volume hazardous waste streams.

 12 If beneficial reuse of coal combustion

 13 residuals decreased --

 14 MR. MILLER: Your time is up.

 15 MR. SCHIEFFELIN: Okay. Thank you very

 16 much.

 17 MR. NEEL: My name is David Neel. I

 18 work for Boral Material Technologies. Our company

 19 manages coal combustion products, principally fly

 20 ash in concrete. We certainly support the EPA's

 21 effort to protect human health and the

 22 environment. However, we do not want the EPA to
 272

 1 overreact by labeling fly ash as hazardous through

 2 Subtitle C regulation.

 3 A Subtitle C regulation will negatively

 4 impact our industry and result in significant

 5 damage to our environment, our employees, our

 6 customers, and other fly ash marketing firms.

 7 Also negatively impacted will be area-consumable

 8 electricity due to increased costs.

 9 The EPA should recognize the successful

 10 history of fly ash utilization in the U.S. and

 11 avoid taking actions that negatively affect the

 12 future successful use of these materials within

 13 the construction industry.

 14 The combination of improved economics

 15 and superior engineering properties have resulted

 16 in the use of fly ash being accepted as a routine

 17 material used in the daily production of ready

 18 mixed concrete and concrete products. It should

 19 be noted, there is no substitute produce for fly

 20 ash that produced similar results at similar

 21 costs.

 22 Scientific data is clear. In 1993 and
 273

 1 again in 2000, EPA found coal ash did not warrant

 2 management as a hazardous waste. Material has not

 3 changed, and no new studies have revealed some

 4 unknown harmful traits.

 5 EPA is suggesting that regulating fly

 6 ash disposal under Subtitle C, a hazardous waste,

 7 with a nonhazardous label for coal ash recycled

 8 for beneficial use, they don't believe a hazardous

 9 label will have a negative impact on recycling of

 10 these materials. We believe the EPA is not

 11 correct in this assumption. The stigma impact is

 12 real and already affected the beneficial reuse of

 13 fly ash.

 14 Owners, material specifiers, and

 15 engineers will refuse to allow fly ash in their

 16 projects due to concerns about future legal

 17 liability exposure.

 18 As an advocate for fly ash -- beneficial

 19 use of fly ash, I request that the EPA only

 20 regulate fly ash under Subtitle D to avoid any

 21 reference to fly ash as a hazardous waste.

 22 By the EPA's own admission, Subtitle D
 274

 1 nonhazardous waste rule will provide an equal

 2 degree of protection to public health and the

 3 environment. The U.S. environment will best be

 4 served by continuing the fly ash success story of

 5 beneficial use and recycling.

 6 Thank you very much.

 7 MS. DEVLIN: Thank you.

 8 MR. EISENFELD: Good afternoon. My name

 9 is Mike Eisenfel. I am the New Mexico energy

 10 coordinator for the San Juan Citizens Alliance in

 11 the Four Corners region. San Juan Citizens

 12 Alliance is actively involved in oversight of

 13 energy development and air quality and public

 14 health issues.

 15 Directly west of Farmington, New Mexico,

 16 are two large coal-fired power plants: The San

 17 Juan Generating Station and the Four Corners Power

 18 Plant. These plants both border the San Juan

 19 River, a primary tributary to the Colorado River.

 20 These coal plants are 40 to 50 years old

 21 and have a legacy of generating and dumping

 22 enormous quantities of coal combustion waste,
 275

 1 including fly ash, scrubber sludge, and bottom

 2 ash. These toxic wastes are backfilled in the San

 3 Juan and Navajo mines, which also provide the coal

 4 for the San Juan Generating Station and Four

 5 Corners Power Plant.

 6 The BHB Navajo Mine and San Juan Mine

 7 are regulated by distinct entities that are

 8 physically located 10 miles apart in

 9 multi-jurisdictional boundary zones with

 10 inadequate regulatory oversight.

 11 CCW has historically been dumped along

 12 the San Juan River in unlined pits with limited

 13 reclamation becoming fugitive dust sources and

 14 affecting groundwater and surface water resources.

 15 Hydrologic studies and public health

 16 analyses concerning the CCW dumping process in the

 17 Four Corners region is incomplete. Citizens

 18 continue to be exposed to these wastes.

 19 A 2008 TRI chemical data form from a BHB

 20 Navajo coal mine and posted on EPA's website shows

 21 that BHB's Navajo Mine is one of the largest

 22 polluters of toxic solid waste in the region.
 276

 1 Since 1991, BHB has been exposing the CCWs

 2 backfill material from the Four Corners Power

 3 Plant.

 4 Scientific document of CCW content

 5 includes dense concentrations of barium, arsenic,

 6 lead, selenium, mercury, and radioactive

 7 materials. BHB continues to accept approximately

 8 1.9 million cubic yards of CCW from the Four

 9 Corners Power Plant annually.

 10 As of the year 2000, BHB has disposed of

 11 50 to 55 million tons of CCW in the Navajo mine

 12 pits covering approximately 230 acres. It appears

 13 that this CCW at the Four Corners Power Plant is

 14 now being dumped on the Four Corners Power Plant

 15 lease site.

 16 CCW toxicity adversely impacts the San

 17 Juan Colorado River basin which provides drinking

 18 water to million of citizens. Our organization

 19 strongly urges EPA to classify CCW as a hazardous

 20 waste stream to fully evaluate contamination of

 21 CCW and treat it as the hazardous waste it is and

 22 protect our communities from this harmful dumping
 277

 1 process.

 2 Our region is relied on for energy

 3 export. We need EPA to take firm action to

 4 regulate the storage of CCW and recognize that

 5 so-called clean coal technologies and control

 6 technologies to reduce air pollution when burning

 7 coal will result in even more toxic CCW being

 8 generated.

 9 We ask EPA to initiate tribal

 10 consultations in our region on the CCW problem,

 11 including environmental justice oversight

 12 responsibilities.

 13 We are vehemently opposed to the

 14 self-regulation terms of Subtitle D and do not

 15 think that the preferred Subtitle C is sufficient

 16 to deal with the toxic legacy of CCW that projects

 17 on --

 18 MR. MILLER: Your time is up.

 19 MR. EISENFELD: Thank you for the

 20 opportunity to provide comments.

 21 MS. DEVLIN: Thank you.

 22 MR. BESSLER: Hello. My name is Andy
 278

 1 Bessler. I'm a representative of the Sierra Club

 2 out of Flagstaff, Arizona. I'm speaking in

 3 support of Subtitle C. The Sierra Club will be

 4 submitting written comments and several other

 5 representatives are here urging you to regulate

 6 this hazardous waste.

 7 The Sierra Club is currently involved in

 8 a lawsuit against the owners of the San Juan Power

 9 Generating Station in New Mexico and the adjacent

 10 San Juan coal mine over pollution that we believe

 11 is caused by the company's disposal of coal

 12 combustion waste.

 13 Several years ago, Squeak Hunt, who

 14 testified earlier, who lives downstream of the

 15 facility, saw 1,400 of his sheep drop dead after

 16 drinking water from the Arroyo. Although this

 17 form of coal combustion waste disposal at issue,

 18 minefilling is not covered under either of the

 19 proposed regulations. This case highlights the

 20 dangers of unregulated disposal of coal combustion

 21 waste and the high potential pollutants from this

 22 waste to make their way into ground and surface
 279

 1 water.

 2 We are concerned, obviously, about heavy

 3 metals such as mercury and depleted uranium that

 4 is found in this coal combustion waste. In a

 5 desert watershed, pollution has an impact on

 6 people's drinking water and is a threat to human

 7 health.

 8 Indeed, this also points to the legacy

 9 of coal in the southwest at these big coal plants

 10 like Navajo Generating Station and Four Corners

 11 San Juan, and shows the reason why we really need

 12 to transition to a clean energy economy and reduce

 13 our dependence on coal.

 14 I've heard a lot of talk about the

 15 stigma of coal ash as a potential threat there.

 16 The reality is it's a hazardous waste, and the

 17 responsibility of the EPA is to protect human

 18 health from hazardous waste. And this is clearly

 19 in the public interest to protect human health

 20 from this hazardous waste that oftentimes is more

 21 radioactive than depleted uranium and can poison

 22 with heavy metals.
 280

 1 Thank you for your time, and I urge you

 2 to support Subtitle C in your actions. Thank you

 3 for the hearing.

 4 MS. DEVLIN: Thank you.

 5 MS. TEWA: Good afternoon. My name is

 6 Marilyn Tewa. I'm from the Hopi tribe. I also

 7 sit on the -- board member for the Black Mesa

 8 Trust, and I'm very sorry and sad that this type

 9 of hearing is not held on our reservations where

 10 we are affected by the coal mining.

 11 35 years ago Hopi tribal council entered

 12 into a lease agreement with Peabody. Little did

 13 they know at that time that it would change our

 14 lives. Today we are faced with many ill effects

 15 because of the coal mining. Our waters have high

 16 level (sic) of arsenic. People -- we have high

 17 level -- high rate of cancer people, respiratory

 18 problems, and anything that's associated with coal

 19 mining.

 20 I strongly urge -- I'm only one person

 21 from Hopi. There are 10,000 people that would

 22 like to have you come to our country, to our
 281

 1 reservations and hold these type of hearings.

 2 In your federal register you seek for

 3 scientific information as to the effects of the

 4 coal ash. On Hopi you will find that. I

 5 guarantee you will. So I strongly urge that you

 6 come to our reservation. We are the living proof

 7 of what coal mining has done to us.

 8 Thank you.

 9 MS. DEVLIN: Thank you. I'm going to go

 10 back a little bit. Are Numbers 75 and 76 in the

 11 audience? Please come forward. Also 234 and 235,

 12 are you in the audience?

 13 MS. BUSHNELL: Hello. My name is Helen

 14 Bushnell, and I live in Lakewood, Colorado, and I

 15 agree that when you have hearings, you should have

 16 communities that are affected by coal mining and

 17 other resource industries.

 18 I think people who live in the cities

 19 don't -- a lot of people have never seen a coal

 20 mine. They've never seen an oil well, and they

 21 don't have a good perspective on -- on the

 22 industry.
 282

 1 I also think the EPA should really look

 2 at the science and should avoid exemptions as much

 3 as possible. I think -- yeah. I really think if

 4 the law says that something is supposed to be

 5 regulated, you should be very, very careful about

 6 giving exemptions.

 7 I think the coal ash bills that have

 8 happened are very serious. People have lost their

 9 homes and their jobs and their lives. They can't

 10 live the same way, and I -- you know -- okay.

 11 I really -- so I really think that the

 12 EPA should be strict in how it applies the law.

 13 It should look at science, and it should -- when

 14 EPA holds public hearings, I think it would be a

 15 good idea to go to places like the Hopi

 16 reservation where people have seen the coal mines.

 17 Go as much as possible to the

 18 communities in Kentucky and Tennessee where people

 19 have lived with these things, and talk to people

 20 who both work in the coal mines and also talk to

 21 people who have lost other kinds of economic

 22 activity because of the coal mines.
 283

 1 Thank you very much.

 2 MS. DEVLIN: Thank you. Number 234.

 3 MS. GOEBEL: This one is going to be

 4 short. My name is Betty Goebel, and I'm with

 5 Colorado Interfaith Power and Light, and I am

 6 double-dipping. This is the second time I've

 7 spoken.

 8 I've been here almost since the

 9 beginning of the day, and I think I've heard the

 10 word "stigma" over 100 times. So I'd like to

 11 speak to the issue of stigma as it relates to

 12 Subtitle C.

 13 When I spoke earlier, I expressed a

 14 concern about needing more research to demonstrate

 15 that beneficial uses are, in fact, beneficial for

 16 somebody other than the people making money off of

 17 them, and I still hold to that.

 18 We need to be able to do research on the

 19 beneficial uses, particularly unencapsulated coal

 20 ash. We haven't had much discussion of that

 21 today, but we've had a lot of discussion about

 22 stigma.
 284

 1 Now, assuming that those beneficial uses

 2 can be demonstrated to be safe, then I think the

 3 stigma issue is really a red herring, and we

 4 should just acknowledge it as such.

 5 You are the EPA. You are a federal

 6 bureaucracy, and I don't mean that -- no offense

 7 intended. If what's causing us from being able to

 8 reach something that allows for both beneficial

 9 uses and safe regulation, then maybe we need

 10 another category.

 11 Maybe we could call it C minus one. I

 12 understand there's a D prime. Maybe what we need

 13 is a D double prime. But it's important that

 14 there be regulations that are enforceable for the

 15 disposal of coal ash, and if that conflicts with

 16 demonstratively safe beneficial uses, then we need

 17 something creative going on in the bureaucracy to

 18 be able to accommodate both of those needs.

 19 It should be possible -- it's not

 20 appropriate to allow that to become -- those two

 21 options to become mutually exclusive.

 22 Thank you very much.
 285

 1 MS. DEVLIN: Thank you. Number 235,

 2 please.

 3 MR. ROBERTSON: Good afternoon. My name

 4 is Jonathan Robertson. I represent Navajo

 5 FlexCrete.

 6 Navajo FlexCrete is a manufacturer of

 7 green building products, a business wholly

 8 Navajo-owned and operated in Page, Arizona. NFBS

 9 products fit into the beneficial-use category of

 10 coal combustion residuals. We recycle or utilize

 11 recycled fly ash to produce fiber-reinforced

 12 aerated concrete.

 13 We brand as an environmentally sensitive

 14 and energy-efficient alternative to timber

 15 construction -- timber frame construction. NFBS

 16 primarily produces fiber-reinforced aerated

 17 concrete block for the construction of homes for

 18 the Navajo people, as a sustainable means of

 19 driving the economy as well as providing

 20 energy-efficient homes for the people.

 21 We employee Navajo community members who

 22 manufacture the material, market, and promote and
 286

 1 assist other native-owned construction companies

 2 to install the product. Additionally, our

 3 marketing is also successfully marketed -- our

 4 product material is successfully marketed

 5 throughout the southwest for custom home

 6 development as well.

 7 We are now entering the stage of our

 8 commercial marketing phase, and our company relies

 9 heavily on the successful branding of our product

 10 image.

 11 The proposed regulations involving

 12 labeling fly ash as a hazardous waste with special

 13 handling requirements will certainly place a

 14 tremendous barrier on our ability to successfully

 15 market our product.

 16 Although the Environmental Protection

 17 Agency supports the legitimate beneficial use of

 18 coal combustion residuals, our product, along with

 19 the other environmental sound beneficial-use

 20 products, will clearly suffer from the stigma

 21 attached to labeling fly ash as a hazardous waste.

 22 Since the announcement of the EPA
 287

 1 proposed regulations, we already have seen an

 2 impact of the proposed regulations with potential

 3 clients such as architects, engineers, and

 4 homeowners who do not want to specify our product

 5 on their projects for fear of the liability

 6 associated with the hazardous waste label.

 7 We urge the EPA's panel oversight --

 8 overseeing the public hearings for coal ash to

 9 greatly consider the impacts to the small

 10 businesses and economies that have been created by

 11 the beneficial-use categories of the fly ash.

 12 Labeling fly ash as hazardous waste will certainly

 13 close the doors of this manufacturer of green

 14 building products.

 15 Thank you for the opportunity to

 16 comment.

 17 MS. DEVLIN: Thank you. Numbers 78, 79,

 18 80, and 81.

 19 MR. WERNER: My name is Orville Werner.

 20 I am a materials engineer. I'm employed by CTL

 21 Thompson in Denver, Colorado. I have conducted

 22 research on concrete. I have written
 288

 1 specifications for concrete construction, and

 2 tested materials used in concrete production

 3 through my 40-year career.

 4 I'm an elected fellow of the American

 5 Concrete Institute and a registered professional

 6 engineer in the State of Colorado.

 7 Concrete is the foundation of the

 8 infrastructure of our society. Fly ash makes

 9 concrete more durable. It significantly decreases

 10 the cost of the amount of portland cement it

 11 replaces, and it lessens the amount of fly ash

 12 that has to be stockpiled or otherwise

 13 indefinitely stored. The benefits of fly ash in

 14 concrete are substantial for our environment.

 15 Improving the durability of concrete

 16 means that we don't have to rebuild the

 17 infrastructure as often, which means we have less

 18 waste debris to recycle or stockpile, and we don't

 19 use more portland cement in rebuilding.

 20 The use of fly ash to replace portland

 21 cement greatly reduces the amount of CO2 that is

 22 generated to build a moderately sized facility.
 289

 1 Testing of fly ash to be used in

 2 construction is a small part of what CTL Thompson

 3 does.

 4 My primary interest in speaking today is

 5 not so much its impact on my business but rather

 6 it's my personal and professional concern for the

 7 impact proposed legislation may have on the

 8 environment, the construction industry, the

 9 economy, the cost of energy and infrastructure

 10 that is paid for by the citizens of this great

 11 country.

 12 If fly ash is classified as a hazardous

 13 material, it will make it economically impossible

 14 to use it in concrete construction. Thus, we will

 15 increase the amount of stored waste, increase the

 16 cost of storing that waste, increase the amount of

 17 CO2 that is emitted into the atmosphere.

 18 If, as proposed, fly ash is given a dual

 19 classification where on the right hand it's not

 20 hazardous when used for beneficial use or on the

 21 left hand it is otherwise hazardous, then the

 22 power companies, the truckers, the concrete
 290

 1 producers, the contractors, and the owners of the

 2 projects will all be burdened with an extreme and

 3 unneeded liability.

 4 Hazardous materials in our labs and on

 5 job sites would be a storage-handling and disposal

 6 nightmare. It may be cheaper to exclude its use.

 7 Any material in excess can be

 8 devastating to our environment. This was

 9 certainly the case when a mountain of saturated

 10 coal ash breached a dam and went into the river.

 11 The situation was similar when Teton Dam failed on

 12 June 5, 1976, destroying much land in Rexburg,

 13 Idaho.

 14 Do what we must to assure that we store

 15 waste fly ash and other byproducts safely, but

 16 don't make the situation worse for the environment

 17 by classing it as hazardous.

 18 I appreciate the concern that all

 19 citizens here have for the protection of our

 20 environment. It is with the same concern that I

 21 tell you that we are endangering our environment

 22 by classifying fly ash as hazardous material.
 291

 1 And by the way, in my 40 years, I can't

 2 recall anyone getting sick from using it in

 3 construction.

 4 Thank you very much.

 5 MS. DEVLIN: Thank you. Number 79.

 6 Number 80. 81.

 7 MR. GARDNER: My name is Robert Gardner,

 8 and I am Greenpeace's Coalition and Partnership

 9 representative. I'm here today to support your

 10 efforts to create a federal minimum coal ash

 11 disposal standard.

 12 I am here representing our millions of

 13 members worldwide saying that coal ash is

 14 hazardous and a state-by-state enforcement is just

 15 not enough.

 16 It's clear that coal ash must be treated

 17 as a hazardous waste under Subtitle C of RCRA. We

 18 need federal regulation to ensure that dangerous

 19 coal ash isn't just shipped to the state with the

 20 most lax regulatory scheme.

 21 Sound science supports the special waste

 22 designation. Coal ash waste contains arsenic,
 292

 1 cadmium, chromium, lead, mercury, selenium, and

 2 thallium among other toxic metals. These

 3 dangerous toxic elements cause cancer, organ

 4 disease, respiratory illness, neurological damage,

 5 and reproductive and developmental problems.

 6 There are over 130 damage cases that

 7 have been clearly documented. This is an ongoing

 8 health care catastrophe and requires redress

 9 immediately.

 10 Business as usual will not protect the

 11 health and welfare of the American people. In

 12 responding to pressure from the utility industry,

 13 prior administrations have allowed the industry to

 14 police itself or self-regulate under a patchwork

 15 of state directives leading to the extensive

 16 contamination of water and land by toxic heavy

 17 metals. This approach has not and will not

 18 protect streams, ponds, rivers, lakes, and human

 19 health.

 20 Everyone in this room remembers the

 21 Kingston TVA spill in Harriman, Tennessee, and the

 22 failure of the sludge impoundment which released
 293

 1 over one billion gallons of toxic coal ash sludge

 2 over 300 acres poisoning everything in its path.

 3 Response, it is being cleaned up by

 4 shipping it over to Perry County, Alabama, which

 5 currently has no regulations regarding disposal of

 6 coal ash. This is unacceptable.

 7 Not only is coal ash hazardous, but the

 8 problem is enormous. Approximately 140 million

 9 tons of this mix is generated every year. That's

 10 every year.

 11 A hazardous waste designation under

 12 Subtitle C of RCRA would ensure that coal ash

 13 dumps and waste ponds have all the protections

 14 currently required at waste landfills. Solid

 15 waste permitting -- permits, liners, monitoring

 16 systems, and leachate collection system make

 17 sense, are readily available technologies, and can

 18 help prevent disproportionately poor communities

 19 from being at risk from high hazard dams and

 20 leaking dumps.

 21 Lax guidelines such as those that would

 22 be applied under the weaker Subtitle D regulations
 294

 1 will fail to fix the problems as the EPA expects

 2 that approximately 50 percent of coal ash dumps

 3 and waste will not clean up under this plan.

 4 This is exacerbated even worse under the

 5 Subtitle D prime option which would not even apply

 6 to some of the worst, most dangerous dumps and

 7 waste ponds in the country.

 8 I commend the EPA for conducting these

 9 hearings on its two vastly different proposals

 10 concerning public and environmental safety

 11 standards for the disposal of toxic waste from

 12 coal-fired power plants, and know that given the

 13 readily available science that you will make the

 14 right choice.

 15 Thank you very much.

 16 MS. DEVLIN: Thank you. Number 84, if

 17 you're in the room. 227, 228, 229, 230, 231.

 18 231. Thank you.

 19 MR. DELASHMIT: Hi. My name is Zack

 20 Delashmit. I support a designation of coal ash as

 21 a Class C hazardous waste. As seen in Appalachia,

 22 coal ash is a public health issue as well as an
 295

 1 environmental issue. Each of these issues should

 2 be taken into consideration when regulating coal

 3 ash. I support the decision to designate coal ash

 4 as Subtitle C hazardous waste.

 5 Thanks.

 6 MS. DEVLIN: Thank you. At this point I

 7 have concluded all the speakers who are registered

 8 and have signed in. So I will ask one more time.

 9 Is there anyone with a number or who is registered

 10 to speak or would like to speak? Okay.

 11 We will take a 10-minute break at this

 12 point, and we'll reconvene in 10 minutes and see

 13 if there are any other registered speakers. If

 14 not, we will then take a dinner break.

 15 Thank you.

 16 (Recess)

 17 MS. DEVLIN: I wanted to give one more

 18 opportunity. Is there anyone who signed in who

 19 has a number who would like to speak to us this

 20 afternoon? Okay.

 21 Hearing no one, we're going to take a

 22 break until 6 o'clock. We will reconvene starting
 296

 1 at 6:00 at this room. We do have a number of

 2 speakers signed up for this evening. So we

 3 encourage everyone to come back a couple minutes

 4 before 6:00. We will start at 6:00.

 5 Thank you. Go out and enjoy a little

 6 bit of the weather.

 7 (Whereupon, at 4:33 p.m., an

 8 afternoon recess was taken.)

 9

 10

 11

 12

 13

 14

 15

 16

 17

 18

 19

 20

 21

 22
 297

 1 E V E N I N G S E S S I O N

 2 (6:02 p.m.)

 3 MR. DELLINGER: All right. We're going

 4 to start the evening session. Good evening, and

 5 thank you for attending today's public hearing on

 6 the Environmental Protection Agency's proposed

 7 rule regarding the regulation of coal combustion

 8 residuals that are disposed of in landfills and

 9 surface impoundments.

 10 Before we begin, I would like to thank

 11 you for taking the time out from your busy

 12 schedules to address the proposed rule, and we

 13 look forward to receiving your comments. This is

 14 the second of seven public hearings that we'll be

 15 conducting. We had a successful hearing in

 16 Washington, DC, on Monday of this week. The

 17 remaining hearings are scheduled for Dallas,

 18 Charlotte, Chicago, Pittsburgh, and Louisville.

 19 My name is Bob Dellinger. I am the

 20 Director of the Materials Recovery and Waste

 21 Management Division in EPA's office of Resource

 22 Conservation and Recovery. I'll be chairing this
 298

 1 session of today's public hearing.

 2 With me on the panel are Laurel Celeste

 3 from our Office of General Counsel; Kendra

 4 Morrison from your Denver regional office; and

 5 Alex Livnat, who works with me.

 6 Before you begin the hearing, I would

 7 like to -- I'd like to go over the ground rules

 8 for the comment portion of today's public hearing.

 9 The way it will work is, speakers, if you're

 10 preregistered, you'll be given a 15-minute time

 11 slot when you're scheduled to give your three

 12 minutes of testimony.

 13 To guarantee that slot, we've asked that

 14 you sign in 10 minutes before your 15-minute slot

 15 at the registration desk. All speakers that are

 16 preregistered and walk-ins were given a number

 17 when you signed in today, and this is the order in

 18 which you will speak.

 19 I will call speakers to the front row

 20 over here on my right, your left, four at a time.

 21 When your number is called, please move to the

 22 microphone and state your name and your
 299

 1 affiliation. We may ask you to spell your name

 2 for the court reporter, who is transcribing your

 3 comments for the official record.

 4 Because there are many people who have

 5 signed up to provide testimony and to be fair to

 6 everyone, testimony is limited to three minutes.

 7 We'll be using an electronic timekeeping

 8 system, and we'll also hold up cards to let you

 9 know when your time is getting low. When we hold

 10 up the first card, you'll have two minutes left.

 11 When we hold up the second card, that means you'll

 12 have one minute left. When we hold up the third

 13 card, you have 30 seconds left. And when the red

 14 card is held up, you're out of time and should not

 15 continue with your testimony.

 16 Remember that you can provide any

 17 written material to our court reporter, and

 18 material will be entered into the record. We will

 19 not be answering questions on the proposal.

 20 However, we may ask questions of you if we don't

 21 understand or need clarification on something that

 22 you stated in your testimony.
 300

 1 As I just mentioned, if you have brought

 2 a written copy of the comments you're giving

 3 today, please leave a copy in the box by our court

 4 reporter, and that box is right here to my left,

 5 your right, and then if you are only submitting

 6 written comments today, please put those in the

 7 box by the registration desk.

 8 If you have additional comments after

 9 today, please follow the instructions in the -- on

 10 the yellow handout and submit comments by November

 11 19, 2010.

 12 Our goal is to ensure that everyone who

 13 has come today to present testimony is given an

 14 opportunity to provide comment. To the extent

 15 allowable by time constraints, we'll do our best

 16 to accommodate speakers that have not

 17 preregistered. I don't think that's going to be a

 18 problem. I hope not.

 19 Today's hearing is scheduled to close at

 20 9 p.m., but we will stay later if necessary. If,

 21 however, time does not allow you to present your

 22 comments orally, we have prepared a table in the
 301

 1 lobby where you can provide written statements in

 2 lieu of oral testimony.

 3 These written statements will be

 4 collected and entered into the docket for the

 5 proposed rule and will be considered as if you

 6 presented them orally.

 7 If you'd like to testify but have not

 8 registered, please sign up at the registration

 9 table. An agenda can be found in the packet you

 10 received when you signed in today. Also included

 11 is some material on the proposal as well as

 12 instructions for submitting comments.

 13 We're likely to take occasional breaks.

 14 You know, if some people that we think have signed

 15 in had to, you know, leave the building or leave,

 16 you know, this part of the building anyway, you

 17 know, to give them time to get back if there are

 18 no other speakers that are around at that

 19 particular time.

 20 And finally, if you have a cell phone,

 21 we'd appreciate it if you could turn it off or

 22 turn it to vibrate. And if you need your phone at
 302

 1 any time during the hearing, please move to the

 2 lobby or somewhere outside the hearing room.

 3 Thanks for participating today. And

 4 we'll get started right now.

 5 I'd like to call Numbers 91, 94, 95, and

 6 97 to the front of the room.

 7 MR. HUDSON: Good evening. My name is

 8 Mark Hudson. I am a replacement speaker for

 9 Charles Norris, who was unable to be here tonight

 10 and had to be out of town. I do have some files

 11 that Charles sent to me, and I'll put those in the

 12 box as soon as I'm done.

 13 Included on the disk are some reports

 14 that Charles has authored and the text of his

 15 testimony to a subcommittee of Congress from a

 16 year ago or so on these same topics.

 17 Charles and I have been involved with

 18 coal ash issues for several years now. We are

 19 consultants to a citizens' group from the small

 20 town of Pines, Indiana. Pines has the unfortunate

 21 history of being one of the towns in America where

 22 CCW, coal combustion waste, has impacted the
 303

 1 groundwater supply.

 2 The BRPs have been required to replace

 3 the private water wells and extend the use of the

 4 water system, and the site continues to be under

 5 investigation in Region 5.

 6 It's my opinion that regulation under

 7 Subtitle D would not and was not sufficient to

 8 protect the citizens of Pines -- we're talking

 9 about hundreds of people here -- from being

 10 receptors to coal combustion waste contaminants.

 11 I think it's going to take Subtitle C to really

 12 protect the public.

 13 Since I'm running out of time real

 14 quickly here, I see, I will just say that no

 15 matter which way EPA decides to go in the end on

 16 the regulations, I'd like to see EPA take a long,

 17 hard look at the so-called beneficial use of coal

 18 combustion waste in mines.

 19 We have done lots of recent looking at

 20 data from mine sites, and SMCRA regulations are

 21 insufficient. They don't provide the kind or

 22 level of groundwater monitoring necessary to even
 304

 1 be able to detect impacts from CCW disposal in

 2 mine sites.

 3 MR. DELLINGER: Thank you. Number 94.

 4 MR. MARTINEZ: Excuse me. Is that water

 5 over there for the speakers? I could probably use

 6 a quick drink to clear the vocal cords. Hope

 7 you're not timing this.

 8 MR. LIVNAT: No, we're not. It won't

 9 count. I promise.

 10 MR. MARTINEZ: Good evening, ladies and

 11 gentlemen. My name is Randy James Martinez, and I

 12 represent the Sierra Club.

 13 The time has come for tougher

 14 regulations for coal-fired electrical plants that

 15 not only emit toxic carbon emissions into the air

 16 that each and every one of us breathes, but more

 17 importantly the coal combustion residuals that are

 18 left behind to poison the drinking water, destroy

 19 our ecosystems, not to mention environmental

 20 damages that are unsightly and hazardous for the

 21 American citizens who are so unfortunate enough to

 22 have to live near these man-made calamities.
 305

 1 This is -- these are unnecessary in this

 2 day and age of innovation, and green technology

 3 that is at our disposal with proper and long

 4 awaited legislation hampered by corporate lobbyist

 5 firms.

 6 CCRs are the carcinogens that when

 7 placed in the unlined or clay-line ponds have the

 8 potential to leak into groundwater. Consequently,

 9 this contaminated water is consumed by residents

 10 in the vicinity of each unlined pond and possibly

 11 clay-lined ponds in which 60 percent of all ponds

 12 in the United States are either clay lined or

 13 unlined according to data collected by you, the

 14 EPA, in the year of 1995.

 15 Also according to your data, composite

 16 liners can dramatically reduce exposure to

 17 carcinogens and toxic pollutants in the parameters

 18 of acceptability. However, the federal government

 19 and most states do not require any such protective

 20 measures.

 21 Why have decades passed behind us while

 22 we have placed CCRs in clay-lined or unlined ponds
 306

 1 that kill, not to mention leave long-term damages

 2 for us and our children, also wildlife and

 3 environmental disasters for the future generations

 4 to deal with?

 5 The failed climate legislation may set

 6 us behind for decades yet to come. You have the

 7 power to stop this insanity by proposing

 8 regulations that will ensure each and every CCR

 9 pond is contained in a composite-lined apparatus.

 10 Why are we producing about 129 million

 11 tons of coal ash each year and have 600 coal ash

 12 dumps and waste ponds nationwide with at least 23

 13 states who have contaminated surface water and

 14 groundwater due to clay-line or unlined ponds?

 15 Are we not the leaders of this free

 16 world? Should we not lead by example and not by

 17 hypocrisy?

 18 I plead with you on behalf of all who

 19 breath air, drink water, stop these atrocities and

 20 make and enforce strict regulations for CCRs to

 21 save this generation and one to comes (sic). This

 22 is your job to protect us. Do it now.
 307

 1 Thank you for telling -- thank you for

 2 allowing me to speak.

 3 MR. DELLINGER: Thank you. Number 95.

 4 MR. MARSH: I made a few notes on the

 5 subject here. My name is Greg Marsh. I'm the

 6 last elected president the Rocky Flats clean-up

 7 commission and administered TAG from EPA, Region

 8 8, until it was totally illegally defunded because

 9 it was done in a totally arbitrary and capricious

 10 way.

 11 And the reason for this is simple. They

 12 didn't want technically competent people

 13 commenting, pointing out errors, and so forth, on

 14 the Rocky Flats Plant mess, which we won. It's

 15 gone.

 16 Sadly EPA, as other regulatory agencies

 17 with the Shaddock chemical mess on the banks -- in

 18 an unlined mess of the banks of the South Platte

 19 River, the uncharacterized nature of what's left

 20 of Rocky Flats -- which you can almost see from

 21 here, I believe -- and other big messes, not the

 22 least of which is Rocky Mountain Arsenal, we're
 308

 1 still messing with those decades and decades after

 2 they started.

 3 We need to have serious clean-up in

 4 these existing messes, and we cannot have policies

 5 that allow corporate America to do anything it

 6 wants. This -- these kinds of messes are

 7 inexcusable.

 8 Why are the citizens drug down here into

 9 this toxic, poison city full of parking Gestapo

 10 when it could be held out at suburbia, for

 11 example, to testify, beg, grovel, whatever you

 12 want call it, for the same things that corporate

 13 executives and their sleazy corporate attorneys

 14 would never allow on their property?

 15 This is crazy, and we're supposed to be

 16 a civilized society.

 17 Thank you very much.

 18 MR. DELLINGER: Is Number 97 here?

 19 Okay. 96.

 20 MS. DUVIVIER: My name is K.K. DuVivier.

 21 I'm a full tenured professor at the University of

 22 Denver Sturm College of Law. I teach mining and
 309

 1 energy law.

 2 I am not anti-development, but I want to

 3 make three points today that will help explain my

 4 support for Subtitle C regulation of CCRs.

 5 First of all, I think that it's

 6 important that any solution that we do does not

 7 impact human health. So we know that we're doing

 8 some tradeoffs; we have taken scrubbers so that we

 9 take the CCRs out of the air, but what we've

 10 essentially done is shifted them to our ground and

 11 the groundwater.

 12 So we need to do -- whatever regulation

 13 we do needs to make sure that groundwater is

 14 protected. So I think that actually protection --

 15 or Subtitle D does not protect groundwater enough,

 16 and that's part of the problem. Just doesn't have

 17 enough teeth in it.

 18 Second, I think that Subtitle D fails on

 19 the true cost test. I know that there are some

 20 estimates that it will cost significantly more to

 21 have the Subtitle C regulations, but those are

 22 short-term benefits. And so often in the area of
 310

 1 energy regulation, we haven't looked at the true

 2 cost of what particular source creates.

 3 And so one of the things that we've seen

 4 with the TVA disaster, the toxic tsunami as some

 5 called it, was that there are a lot of costs down

 6 the road. And that EPA has estimated that they

 7 save $7.4 billion a year with Subtitle C

 8 regulation and that that would be a price increase

 9 of less than 1 percent for utilities, for

 10 customers across the country.

 11 Finally, I think Subtitle C is better

 12 because it will actually encourage the beneficial

 13 use of the CCRs; that some say it may hurt

 14 recycling, but the recycling that's being done is

 15 not being responsibly done. So having that

 16 regulated along the way and actually increasing

 17 the costs of disposal will create new incentives

 18 for recycling.

 19 So I want to thank you for all of the

 20 effort put into this and the opportunity to talk

 21 to you. Thank you.

 22 MR. DELLINGER: Thank you. Is Number 97
 311

 1 here? How about 99, 101, 102, and 103?

 2 MS. ZAHNISER: Hi. Thanks for letting

 3 me speak. My name is Julie Zahniser. I'm from

 4 Boulder, Colorado. I've been a speech pathologist

 5 for about 35 years. I live approximately three

 6 miles south of the Valmont Coal Plant and work as

 7 a speech pathologist evaluating birth defects in

 8 five-year-old children less than half a mile south

 9 -- directly south of the Valmont cooling ponds.

 10 I evaluate children who exhibit speech

 11 and language delays and disorders directly

 12 resulting from neurologic damage. I know you have

 13 heard testimony about the many toxic elements

 14 coming from the coal plants that exist in fly ash,

 15 that exist in the cooling ponds.

 16 I'm obviously here because of my concern

 17 for the children who might be affected by those.

 18 These cooling ponds in the Valmont area are right

 19 in the middle of a huge riparian area, which means

 20 it's characterized by water; water in the ground,

 21 water everywhere.

 22 These ponds were built between 1924 and
 312

 1 1973, I believe, and I read a report from PSCo,

 2 Public Service Colorado, in May of 2009 saying

 3 that when the ponds were built, there was no

 4 documentation of engineer inspection. This does

 5 not give a person a lot of confidence that the

 6 ponds are properly lined.

 7 First, I wanted to mention about those

 8 -- that inspection, and secondly, I would like --

 9 I would like to say -- speak about the fact that

 10 the coal ash is transported on conveyor belts to

 11 an area -- a large area about less than a mile

 12 from where I work in an area where we have average

 13 wind speed of approximately nine miles per hour

 14 throughout the year and the high throughout the

 15 year ranges between 60 and 73 miles per hour.

 16 We're talking about ash, and this is a

 17 serious problem for people who live downwind,

 18 which would be a huge part of Boulder County.

 19 I know these plants are old; that you

 20 can't do anything about the past, but we can do

 21 something about the present and the future. I'm

 22 here to represent the people who are little and
 313

 1 who can't speak for themselves and who are not

 2 born and the one in eight young woman who have

 3 toxic levels of mercury in their bodies now.

 4 We need to help these people and protect

 5 our future. We need to have strong legislation.

 6 We need to inspect these places, clean them up,

 7 and I urge you to take the strongest possible

 8 measure with section (sic) C. Thank you.

 9 MR. DELLINGER: Is Number 101 here?

 10 Number 98.

 11 MS. SEEMAN: Hi. My name is Joan

 12 Seeman, and I am the Sierra Club's Rocky Mountain

 13 chapter toxic waste chair.

 14 Several years ago a family that was

 15 living next to a coal power plant in Colorado

 16 phoned the Sierra Club. They needed our help

 17 urgently, they said. They had just been polluted

 18 by coal fly ash.

 19 They learned that the power plant had an

 20 upset condition and blew coal fly ash into their

 21 air, on their land, into their home. It

 22 contaminated the inside of their house, their
 314

 1 appliances, their furniture, and worst of all,

 2 they could hardly breathe for about 20 minutes of

 3 this upset emission.

 4 We contacted the Colorado Department of

 5 Health and set up a meeting at the family's home,

 6 and we were all present. The state health

 7 department had concluded there was nothing they

 8 could do for this family. The coal plant could

 9 legally operate next to their home, they said,

 10 with upset conditions.

 11 The state said that a power plant's

 12 location is not considered in the permit approval

 13 process. Other states nationwide do consider what

 14 is termed "toxic hot spots" for pollution, which

 15 is what that situation was.

 16 The family believed that Colorado should

 17 be concerned about their health and safety next to

 18 this polluter. They decided to videotape this

 19 power plant that included continued upsets, the

 20 coal ash piles blowing in the wind, the trains and

 21 trucks that were coming in that were not covered,

 22 the liquid impoundments that kept growing and
 315

 1 seemed to get larger, and the plumes of gas that

 2 somehow blocked the sun.

 3 They began to educate themselves about

 4 what is toxic coal ash. They asked the power

 5 plant a lot of questions, and eventually the power

 6 plant paid them to move and relocate.

 7 Today U.S. EPA offers two potential

 8 regulating opportunities. I think that's

 9 commendable, but I would like to also inject that

 10 radioactive waste is in fly ash, and I'm pretty

 11 appalled that we have not had any distribution of

 12 any information to let the public know about the

 13 radioactivity in the fly ash.

 14 EPA is currently trying to regulate coal

 15 ash through teamwork regulations that have been on

 16 the table I believe for a long time, and you still

 17 have not done anything about that.

 18 Right now in the combustion process it

 19 says -- U.S. Geological Survey in Colorado said

 20 between 1,000 and 4,000 parts per billion are

 21 being generated, and right now Colorado has a

 22 standard of 30 parts per billion.
 316

 1 So if that coal ash hits our groundwater

 2 and it's being stockpiled in coal ash mountains,

 3 the surface water will be impacted. And the DOE

 4 also says that it's up to 10,000 parts per billion

 5 of uranium, but there's also radium.

 6 Thank you all very much, and we really

 7 appreciate this opportunity to be able to speak to

 8 this issue, and please regulate it as hazardous

 9 radioactive waste, and thank you very much.

 10 My kids want no mercury in their fish,

 11 by the way. They asked me to bring that up.

 12 Thank you all very, very much.

 13 MR. DELLINGER: Let's see. Is Number

 14 90, 92, or 93 here? Okay. We'll go on. Let's do

 15 101, 227, 228, and 230.

 16 MR. ROSKE-MARTINEZ: Hi. My name is

 17 Xiuhtezcatl. I'm a 10-year-boy from the Boulder

 18 Earth Guardians Youth Group. We came to Denver

 19 today to speak out on the dangerous coal ash here

 20 in our communities. This is a very serious issue

 21 that affects my future and the health of our

 22 communities.
 317

 1 Right now more than 150 million tons of

 2 toxic ash is generated each year by burning coal

 3 for electricity. This toxic ash is filled with

 4 many toxins such as arsenic, lead, and mercury,

 5 and now they're finding levels of these chemicals

 6 in our water systems, in our air, and our land

 7 miles away from where these coal ash sites are.

 8 This is pretty scary news considering

 9 that there's a coal ash storage site right here in

 10 Denver and in Boulder.

 11 We as youth know what's happening to our

 12 Mother Earth, and it is not okay. We are out of

 13 balance. Glaciers are melting, weather patterns

 14 are changing, oil spills are destroying our oceans

 15 and wetlands, and issues with coal ash are

 16 threatening our future.

 17 We are the ones who will be most

 18 affected by these issues if nothing is done now.

 19 I ask you, Do I matter? Do your children matter?

 20 Our voices need to be heard.

 21 We are the ones who will be here when

 22 you are gone that will have to deal with cleaning
 318

 1 up this mess. So please think of us, the

 2 children, when you are deciding on how to deal

 3 with things like coal ash and remember on how it

 4 will affect our future.

 5 Thank you.

 6 MR. DELLINGER: Thank you. That was

 7 Number 101; is that right?

 8 UNIDENTIFIED SPEAKER: Yes.

 9 MR. DELLINGER: Okay. Number 227. 228.

 10 UNIDENTIFIED SPEAKER: Hi. I'm speaking

 11 as a college student who drove 15 hours from

 12 Tempe, Arizona, to have my voice heard. My

 13 generation, my friends and -- my friends and I are

 14 not largely responsible for our country's current

 15 state environmental protection. However, soon we

 16 will be passed the reins of our country's economy

 17 and environment.

 18 And it will be our children that you

 19 have committed to growing up in a world where

 20 arsenic and selenium are considered appropriate

 21 substances for our infrastructure.

 22 I ask the EPA to regulate coal ash as
 319

 1 hazardous waste under Subtitle C RCRA so this

 2 country won't pass along toxic chemicals to those

 3 who aren't here in this room but will suffer

 4 nonetheless if further action is not taken.

 5 Thank you.

 6 MR. DELLINGER: Number 230. Number 236.

 7 I'll come back to 107.

 8 MS. REETZ: Good evening. My name is

 9 Pauline Reetz. I'm the conservation chairman for

 10 the Audubon Society of Greater Denver, a local

 11 grassroots organization with about 3,000 members

 12 in the Denver metro area.

 13 And we're here tonight because we

 14 support the regulation of coal ash as a hazardous

 15 waste under Subtitle C of RCRA, and we're taking

 16 this position because we believe that any waste

 17 containing the kind of heavy metals that this

 18 stuff does should be regulation -- regulated as

 19 hazardous.

 20 And we're particularly concerned with it

 21 leaching into surface and groundwater with

 22 substantial negative impacts to both humans and to
 320

 1 the environment, particularly wildlife and

 2 particularly to our major interest, which is

 3 birds.

 4 The toxins in surface water, of course,

 5 can be taken up by such organisms as mussels or

 6 insect larva or snails, which in turn are eaten by

 7 fish, birds, and animals. Again, birds are right

 8 in there. Mutual impacts will include destruction

 9 of food chains and destruction of animal

 10 communities and eventually I think the destruction

 11 of plant assembly and ecosystem disruption, which

 12 eventually, of course, hits us, humans.

 13 We also feel that in the face of global

 14 climate change, global climate disruption, it's

 15 extremely important to safeguard all our ground

 16 and surface water supplies from possible

 17 contamination.

 18 I just have a couple more observations.

 19 One is that we think the federal regulation is

 20 necessary because although some states do a good

 21 job of regulation of hazardous waste, others do

 22 not. And there's a patchwork of regulations that
 321

 1 leads to contamination in many cases.

 2 On the same principle, we passed the

 3 Clean Water Act and the Clean Air Act back in the

 4 1970s, and we think that you should take action so

 5 that all U.S. citizens have the same freedom from

 6 pollution, not just the ones in states with

 7 stronger regulation.

 8 Secondly, it's our observation that when

 9 an industry is faced with a new regulation, its

 10 members always moan and groan and predict

 11 disaster, but it usually doesn't happen -- it

 12 doesn't happen, and industry adapts and life goes

 13 on. So we think you can go right ahead with this.

 14 Thirdly, just the observation,

 15 prevention is always cheaper than patching up

 16 after the fact. That completes my comments.

 17 Thank you very much for this opportunity

 18 to present our views.

 19 MR. DELLINGER: Numbers 100, 102, 103,

 20 and 104. Are those people here? All right.

 21 We'll go 105, 106, 107, and 108.

 22 MR. ROSKE-MARTINEZ: Hi. My name is
 322

 1 Itzcuauhtli. I'm a seven-year-old Earth Guardian

 2 from Boulder, and we have been working really hard

 3 in Boulder to get our community safer.

 4 And that's -- and I came to Denver to

 5 remind you that my future is in your hands. We

 6 are doing our part to help because we know when

 7 you are gone we are going to clean up a big --

 8 we're going to have to clean up a big mess, and

 9 that job will be much easier if you help us now by

 10 getting rid of those big piles of coal ash that's

 11 poisoning us.

 12 Thank you.

 13 MR. FOREMAN: Okay. I guess I'm on the

 14 clock. My name is John Foreman. I live just a

 15 couple miles from here. I didn't drive 1,800

 16 miles or go to great lengths to get here.

 17 I am speaking in favor of Subtitle C of

 18 the proposal. Thankfully I do not live near a

 19 coal ash impoundment pond. I speak as one who

 20 treasures our natural environment and does not

 21 want the land and water of Colorado or anywhere

 22 polluted by deadly toxins.
 323

 1 As we all know, there are a number of

 2 residual waste products called CCRs that are

 3 created when coal is burned. The coal companies

 4 and electric utilities would have us believe that

 5 coal ash is harmless like dirt.

 6 And while the bulk of the material, fly

 7 ash, bottom ash, boiler slag, and FGD material,

 8 actually has beneficial industrial uses, it also

 9 contains high levels of deadly toxins, including

 10 arsenic, selenium, cadmium, lead, and mercury.

 11 The industry bases its claim that coal

 12 ash is safe on a test called the Toxicity

 13 Characteristic Leaching Procedure, or TCLP. Yet

 14 the EPA's advisory board and the National Academy

 15 of Sciences has determined that the TCLP does not

 16 accurately predict the toxicity in coal ash.

 17 When tested with EPA's new, more

 18 accurate test, the coal ash leached up to 18,000

 19 parts per billion, which is 1,800 times the

 20 federal drinking water standard. Selenium leached

 21 from one pond at up to 29,000 parts billion, which

 22 is 580 times the drinking water standard.
 324

 1 It's not a matter of some ponds being

 2 safe and some not. If a pond has coal ash in it,

 3 it also contains toxic poisons. In fact, a new

 4 report by the Environmental Integrity Project,

 5 Earthjustice, and the Sierra Club, released

 6 October 26, identifies 39 additional coal ash dump

 7 sites in 21 states that are contaminating drinking

 8 water or surface water with arsenic and heavy

 9 metals.

 10 These sites are in addition to the 67

 11 EPA-acknowledged sites, bringing the total number

 12 to 137 in 34 states.

 13 I'm not going to be able to finish this,

 14 but I'll try.

 15 In Colorado there are 40 coal ash ponds

 16 at 10 plants. 26 of the ponds are over 30 years

 17 old. 13 are over 40 years old. The age of these

 18 ponds means it's unlikely they have safeguards

 19 like liners and leachate collection systems.

 20 People living near unlined coal ash

 21 ponds can have a one in 50 risk of cancer. That's

 22 more than 2,000 times higher than what the U.S.
 325

 1 EPA considers acceptable. The toxins in coal ash

 2 have also been linked to organ disease,

 3 respiratory illness, neurological damage, and

 4 developmental problems.

 5 Two ponds in Colorado; one in Comanche

 6 and one Valmont, had spills in 2000 and 2008

 7 respectively. Do we really want to rely on the

 8 coal industry to make coal ash ponds safe?

 9 Please do not -- please do the right

 10 thing and regulate these dangerous materials.

 11 MR. DELLINGER: 106.

 12 UNIDENTIFIED SPEAKER: Kind of missed my

 13 turn.

 14 MR. DELLINGER: We'll catch you in a

 15 minute.

 16 MS. JOHNSON: Good evening. My name is

 17 Candice Johnson, and I'm a pediatrician, and I'm

 18 here to talk about the medical aspects of coal ash

 19 tonight. I also want to support coal ash disposal

 20 under Subtitle C rather than Subtitle D.

 21 The reason is toxic metals, which are --

 22 especially lead, which is a neurotoxic, are
 326

 1 abundant in coal ash. I'm a pediatrician with 33

 2 years of experience since medical school, and 20

 3 of those years were spent in Cleveland, Ohio,

 4 which is a hot spot for lead poisoning.

 5 I personally treated dozens of children,

 6 usually toddlers and babies, who had lead

 7 toxicity, and it's really a scary thing to see

 8 because those children have lost IQ points. In

 9 fact, some of them are mentally retarded. I've

 10 seen children who have crossed eyes. The

 11 neurotoxicity of lead is prodium. It comes in

 12 many different flavors.

 13 Coal ash is heavily contaminated with

 14 lead as well as cadmium and arsenic. I believe

 15 you've heard testimony about that today. But

 16 tonight I'm addressing only lead.

 17 There are three ways that lead enters

 18 into the human body. It enters through the air we

 19 breathe. It enters through the water we drink in

 20 our homes and essentially through wells. And

 21 thirdly, it enters through the dirt which children

 22 and adults get on their hands and on their feet.
 327

 1 The fourth way, which was the eating of lead

 2 paint, thank goodness is becoming much more rare

 3 because we no longer have lead in paints.

 4 We also have eliminated lead in

 5 gasoline, as you all know, and because of that,

 6 modern doctors are seeing less and less lead

 7 poisoning, and in Colorado it's actually a rather

 8 small problem. But it is not a problem which has

 9 gone away because if we have more coal ash being

 10 disposed of improperly, we can get it back into

 11 the water supply and into the air we breathe.

 12 Coal ash is placed in so-called ponds,

 13 which are really just pits which are usually

 14 unlined, can leach into the groundwater. The ash

 15 can blow out of dry landfills, and we can breathe

 16 it in just by living in a city that's near a

 17 landfill.

 18 Now, it really doesn't take a whole lot

 19 lot of led to cause toxicity. The amounts of lead

 20 are so minuscule that scientists debated for years

 21 whether or not the loss of IQ points was really

 22 occurring from them or whether it was similarly an
 328

 1 accident that had something to do with living in

 2 poverty.

 3 Well, it does occur to people living in

 4 poverty because those were the ones who had homes

 5 with the chipping paint, had proximity to

 6 interstate highways where there was lead being

 7 given off the leaded gasoline, but it wasn't

 8 poverty. It was the lead.

 9 We know conclusively that even very low

 10 levels of lead in children's blood can cause

 11 learning disabilities, hyperactivity, and mental

 12 retardation.

 13 So it is my professional opinion that we

 14 need to treat coal ash as a dangerous byproduct,

 15 and we need to phase out the aerosolization and

 16 cover the dry landfills.

 17 Thank you very much for allowing me to

 18 speak tonight.

 19 MR. DELLINGER: Thank you. Number 108.

 20 MS. CARTER: Hi. My name is Trinity.

 21 I'm also an Earth Guardian in Boulder. I came

 22 today because I wanted to make a difference.
 329

 1 I was really shy, but when I got into

 2 Earth Guardian and started learning about the

 3 planet we were being handed, I knew I had to do

 4 something. I had to find the courage to stand up

 5 and speak out, and that is why I'm here.

 6 I want to ask you to find the same

 7 courage to stand up for our future and put an end

 8 to toxic coal ash problems that are left outside.

 9 It doesn't seem very smart just to put

 10 it outside when tons of it just blows away and

 11 puts our health at risk.

 12 Thank you.

 13 MR. DELLINGER: Number 104.

 14 MR. DVORAK: Good evening. My name is

 15 Bill Dvorak. I'm a river outfitter from Nathrop,

 16 Colorado.

 17 I grew up on a small ranch between

 18 Sheridan, Wyoming, and Billing, Montana. So I'm

 19 very aware of the effects of fossil fuel

 20 contaminants on folks who live adjacent to those

 21 kinds of facilities.

 22 You've already heard enough about the
 330

 1 identification of a number of new contaminants

 2 that came out in 39 dump sites in 21 states

 3 bringing the total to 237 in 34 states, and we

 4 have 40 of those sites here in Colorado, and

 5 fortunately we haven't had any of them spill yet.

 6 And I think what I want to do today is

 7 talk about something besides people's health, and

 8 that's wildlife. And one of the things that we

 9 can equate that to is back in 2002 we had a

 10 serious fire season here in Colorado, and during

 11 that time the word got out that the entire state

 12 was on fire even though only 1 percent of the

 13 state was actually burning.

 14 And due to that, one of the things that

 15 happened was the industry that I am mostly

 16 involved in, which is recreation and tourism,

 17 hunting and fishing, was severely impacted.

 18 There's about almost 600,000 sportsman in

 19 Colorado, and they generate about $1.2 billion in

 20 direct economic impact and about 2.1 billion with

 21 a multiplier.

 22 We also have a number of people who come
 331

 1 to Colorado for wildlife viewing. That generates

 2 about 1.4 billion. The total outdoor recreation

 3 economic impact to the state is well over 10

 4 billion, and that's one of the largest economic

 5 drivers in the state, larger than any of the

 6 fossil fuel industries.

 7 When that fire came and we had basically

 8 the word going out that whole state was on fire,

 9 we saw about a 40 to 50 percent downturn in that

 10 economy, and there are areas that still have not

 11 recovered because of the siltation and the other

 12 things that happened after the fire burned.

 13 And these are the kind of things that I

 14 think would happen if we had some sort of a coal

 15 ash dump spill similar to the one that happened in

 16 Tennessee a while ago.

 17 For this reason I think it's very

 18 important that you guys identify this as a toxic

 19 substance and go ahead and regulate it, and I

 20 would recommend Subtitle C for that reason.

 21 Thank you for your time.

 22 MR. DELLINGER: 237, 238, 239, and 241.
 332

 1 Please come forward.

 2 MS. MAR: Hi. Thank you for letting me

 3 speak this evening. My name is Connie Mar, and I

 4 live in Lakewood. I also do not live near a toxic

 5 waste dump or coal ash pond, but I do strongly

 6 support Subtitle C, and I ask that you reconsider

 7 leaving in place the Bevill exemption for

 8 beneficial uses of coal ash. I find that a bit of

 9 a misnomer.

 10 Using coal ash in concrete cement or

 11 wallboard will create future exposure to the coal

 12 ash when these materials are disturbed. And it's

 13 easy to think, well, that will never happen.

 14 Concrete is durable. It's strong. It's not

 15 porous. That is not true.

 16 So for instance, we are in a remodeling

 17 landscaping project, and we are going to be

 18 removing our patio block. Do I need to worry

 19 about coal ash being in that cement when we take

 20 it apart? Do I need to worry about coal ash in

 21 the dust?

 22 There was a time when we thought
 333

 1 asbestos was safe, and we were told tobacco was

 2 safe. We learned the hard way that that is not

 3 true.

 4 We already know that coal ash is toxic.

 5 It contains 24 elements that are extremely

 6 poisonous to us. We don't want to be exposed to

 7 that. So we ask that you protect us, protect our

 8 environment.

 9 And the companies that claim that they

 10 will be under hardship with these regulations,

 11 they're spending hundreds of millions of dollars a

 12 year trying to convince us that coal and coal ash

 13 is not dirty, it's not dangerous. They can spend

 14 their hundreds of millions of dollars by taking

 15 care of toxic waste dumps.

 16 Thank you.

 17 MS. JIN: My name is Shirley Jin, and

 18 I'm a citizen of Colorado -- Boulder, Colorado.

 19 And the role of the EPA is to protect

 20 the environment and protect the citizens of the

 21 U.S. From toxic materials. Now, the EPA has

 22 determined that many of the toxins that are
 334

 1 contained in coal ash are hazardous and actually

 2 regulates those toxins when they are released in

 3 certain cases.

 4 These hazardous toxins are not regulated

 5 when they're in coal ash even though the EPA

 6 understands that the coal ash will leach into the

 7 groundwaters often and it will go into the

 8 surrounding soil. In fact, the EPA has found that

 9 people living within these coal ash storage areas

 10 have health hazards.

 11 This really makes no sense. If the EPA

 12 understands the dangers, the EPA needs to regulate

 13 the problem.

 14 U.S. power plants produce 130 million

 15 tons of coal ash each year. It's the second

 16 largest waste stream in the U.S. after household

 17 waste. Therefore, it's a huge problem.

 18 And we need federal legislation that

 19 will regulate coal ash because it has these toxic

 20 materials that are leaching into the water and

 21 soil and that will -- by basic environmental and

 22 public health safeguard. The EPA should not
 335

 1 compromise just because the problem is so large,

 2 because we don't even need to burn coal. We need

 3 renewable energy sources, and we have them.

 4 MS. ENGLISH: Good evening. My name is

 5 Becky English, and I'm a sustainability

 6 consultant, and I chair the energy committee for

 7 Sierra Club in the state of Colorado.

 8 Sierra Club members and I are taking the

 9 time to submit testimony before you today to urge

 10 you to adopt the proposed RCRA Subtitle C rather

 11 than the Subtitle D provision under consideration.

 12 The reason is that EPA must consider the

 13 mountain of scientific evidence that the

 14 substances contained in coal combustion wastes are

 15 harmful to humans and other life forms.

 16 I'm going to leave it to others to

 17 continue the litany of the terrible substances and

 18 effects on health, but I wanted to bring your

 19 attention to a study that was released just last

 20 week by the Environmental Integrity Project. I

 21 will leave you a link to that study.

 22 This study identifies 39 additional
 336

 1 sites in 21 states besides those already known to

 2 be contaminating drinking water and surface water.

 3 So the report, which included folks from Sierra

 4 Club in the activity, documents that state

 5 governments are not adequately monitoring coal

 6 combustion waste disposal sites.

 7 This is certainly true right here in

 8 Colorado where budgetary constraints are often

 9 cited by the Colorado Department of Public Health

 10 and Environment for inadequate monitoring.

 11 The report shows that every one of the

 12 coal ash dump sites equipped with groundwater

 13 monitoring wells, concentrations of heavy metals

 14 such as arsenic and lead exceed federal

 15 health-base standards for drinking water. Some

 16 contaminations are as high as 341 times the

 17 federal standard for arsenic.

 18 Clearly the conclusion is that EPA must

 19 take robust steps to protect the environment from

 20 the toxins associated with coal combustion waste.

 21 I'd like to point out that EPA standards

 22 are created with only human health in mind, and
 337

 1 that, of course, there's untold and probably much

 2 more devastating havoc being wreaked on so-called

 3 lower or simpler forms of animal and plant life.

 4 EPA has many other opportunities for

 5 scientific and sociologic input on its decision,

 6 but I urge you to adopt regulations under RCRA

 7 Subtitle C for another very good reason, and

 8 that's the wisdom of the precautionary principle,

 9 which states that if an action or policy has a

 10 suspected risk of causing harm to the public or to

 11 the environment in the absence of scientific

 12 consensus that the action -- lost my place -- that

 13 the action or policy is harmful, the burden of

 14 proof that it's not harmful falls on those taking

 15 the action, in this case, power providers who use

 16 coal.

 17 This principle allows policy makers such

 18 as you to make discretionary decisions in

 19 situations where there's the possibility of harm

 20 for taking a particular course or making certain

 21 decisions when there's extensive scientific

 22 knowledge on the matter that's lacking.
 338

 1 So please act responsibly and adopt

 2 regulations pursuant to RCRA Subtitle C treating

 3 coal combustion waste as the hazardous substance

 4 that it most certainly is.

 5 Thank you very much.

 6 MR. DELLINGER: Number 241.

 7 MR. THOMAS: Hi. My name's Rob Thomas.

 8 I feel a little out of place. I moved out here

 9 from New York. I don't live in Boulder, and I

 10 didn't even know what the Sierra Club was until a

 11 week ago.

 12 And a friend of mine asked me if I had

 13 any interest to come here and speak today. I

 14 don't know a lot about coal ash or fumes or

 15 poisons or toxicities or -- but I was thinking

 16 what could I talk about.

 17 So I spent about five minutes on-line

 18 last night, and I found some numbers. I don't

 19 know what kind of effect the EPA can have on these

 20 numbers. I don't know.

 21 Over the last six years, Congress has

 22 accepted $104.7 million in campaign contributions
 339

 1 from fossil fuel companies. In return, they have

 2 paid those same fossil fuel companies $70.2

 3 billion.

 4 I'm not an accountant, but that's either

 5 a 670 percent return on your money or a 670,000

 6 percent return. I'm not sure if I got the decimal

 7 right. So I wonder with that kind of stuff going

 8 on, how can I effectively get any regulation

 9 passed to protect myself and my community.

 10 I have a little graph here, and it shows

 11 the money that goes to fossil fuel companies and

 12 the money that goes to green technology currently

 13 in subsidies, and it's so disproportionate that I

 14 don't know what I can do about that problem.

 15 So if there's anything that the EPA can

 16 do to help us not pay the fossil fuel companies to

 17 continue to destroy our planet, that would be kind

 18 of cool.

 19 And that's really all I've got. Thank

 20 you so much for your time. I appreciate it.

 21 MR. DELLINGER: Number 242, 243, 244,

 22 and 245.
 340

 1 MR. HOFFMAN: Good evening. Thank you

 2 for this hearing. My name is Roger Hoffman, and I

 3 live in Loveland, Colorado, and I'll leave alone

 4 the issues related to greenhouse gas emissions and

 5 whether we should be coal and the spoiling of

 6 mountaintops in West Virginia and all sorts of

 7 other issues, just to focus on the health

 8 implications and the question before you of

 9 whether you should -- whether EPA should adopt

 10 these rules to protect communities and people from

 11 what we'll call coal ash.

 12 And the answer from my perspective is a

 13 resounding yes. If the TVA, Tennessee Valley

 14 Authority, impoundment leak and other like

 15 disasters and the whole history of mining and mine

 16 waste management in this county have taught us

 17 anything, it's that any delay in the effective

 18 regulation and enforcement of management practices

 19 is critical for such materials, and it always

 20 costs us, the taxpayer, far more for any delays,

 21 and it costs human health and suffering.

 22 I know whereof I speak. Seeking the
 341

 1 cause of a mystifying medical condition years ago,

 2 my physician ordered a heavy metal screen.

 3 Subsequently it showed extremely elevated levels

 4 of both mercury and lead in my system. I'm very

 5 happy to have gotten that bad information or that

 6 bad news because it allowed me to finally treat

 7 the issue at hand.

 8 Subsequently my wife was also tested,

 9 and she showed high levels, though not quite as

 10 high as mine, both in the unsafe ranges. That led

 11 us to wonder how much would this population here

 12 and the people around us -- how many of them would

 13 show such levels.

 14 Well, we can't tell where the exposure

 15 path was. We don't know. There's no way of

 16 tracking this. We didn't have any occupational

 17 exposures. We grew up and worked in different

 18 parts of the country as desk jockeys.

 19 But the point is this: There's way too

 20 much of this stuff out there. People are

 21 suffering. Chronic illnesses in this country are

 22 on the rise, and they're bankrupting the nation.
 342

 1 I beseech you to do all you can to put effective

 2 controls in place and get this stuff out of the

 3 environment.

 4 Thank you very much.

 5 MR. DELLINGER: Number 243.

 6 MS. MILOFSKY: Hi. My name's Jacque

 7 Milofsky, and I live just south of Denver. I'm

 8 not a scientist. I'm just a citizen. But I know

 9 you guys employ scientists, and I hope that under

 10 this administration you will use good science to

 11 make the decisions. It sounds like a lot of

 12 science has been done.

 13 And you know, the kids aren't the only

 14 ones who are concerned about the future. I have a

 15 daughter. I hope to have a grandchild soon and so

 16 forth and so on.

 17 And I don't have millions of dollars

 18 like the Coke brothers to buy elections or buy the

 19 Tea Party or, you know, influence legislation, and

 20 that's why I'm glad that I have you guys to stand

 21 up for us, because we need somebody who is not

 22 motivated by profit but is motivated by what is
 343

 1 right for people and for this earth and for our

 2 future.

 3 My son-in-law thinks we're going to

 4 settle Mars, but I'm counting on that. I think we

 5 can't just, you know, leave the room a mess and

 6 move on. We've got to clean up our mess. This is

 7 vitally important.

 8 Thank you.

 9 MR. DELLINGER: Number 244. And is

 10 Number 245 here? Could you raise your hand if

 11 you're here? Is that 245? Yeah. You should be

 12 up here.

 13 MR. ESREY: Hi. My name is Jack Esrey,

 14 and I'm nine years old, and I am an Earth

 15 Guardian. I live in Boulder, and I came tonight

 16 because I didn't want toxic coal ash in our air

 17 and water.

 18 We a saw picture in -- I saw a picture

 19 in National Geographic Magazine of one of the ice

 20 caps with dust on top. The magazine said coal ash

 21 blows up there as soot, which is black, and makes

 22 ice caps melt faster.
 344

 1 We have a coal-fired electric plant in

 2 Boulder. We need clean energy now so that the

 3 children of today can live on a healthy planet

 4 earth. Please support Subtitle C.

 5 Thank you.

 6 MR. DELLINGER: Number 245.

 7 MR. DAVIS: Hello. My name is Brandon

 8 Davis. I'm here because I think coal ash should

 9 be regulated to the fullest extent. It's full of

 10 lots of toxic chemicals, and I really don't think

 11 any of these should have the possibility of ending

 12 up in drinking water or in communities or in

 13 playgrounds, and things like arsenic have no place

 14 in a children's (sic) life.

 15 Actually, talked on the street today --

 16 on campus there with a woman who came here from

 17 Las Vegas to go to National Jewish, which is a

 18 hospital here that pretty much specializes in

 19 lungs and, you know, diseases of the lungs. She

 20 got a disease, cancer, from living in a building

 21 with toxic materials in it, and if there were

 22 regulations, she wouldn't have had that.
 345

 1 If she comes, she should never be able

 2 to live in Denver because it affects her lungs so

 3 much. It's partially because Denver has so much,

 4 you know, pollution. We need to be able to

 5 regulate this pollution downstream and in our air,

 6 and it should be regulated to the full extent.

 7 People are going to live in the middle

 8 of nowhere, a desert in Nevada, to try and get

 9 away from this stuff. Seems kind of awful, to be

 10 honest. And I would not like to live drinking

 11 coal ash. So I would really like to see it

 12 regulated to the fullest extent.

 13 Thank you.

 14 MR. DELLINGER: Numbers -- I'll ask, is

 15 Number 97, 100, 102, or 103 here? Okay. 97.

 16 UNIDENTIFIED SPEAKER: 103.

 17 MR. DELLINGER: 103. Is 100 or 102

 18 here? Okay. So we'll go to 109 and 110.

 19 MR. AVAR: Hi. My name is Harper, and I

 20 and an Earth Guardian from Boulder. We are all

 21 here for the same issue, coal ash. Coal ash is a

 22 toxic substance that is piling up here in
 346

 1 Colorado.

 2 Already there have been multiple spills

 3 from sludge ponds in Pueblo and Boulder. The

 4 decision makers are letting arsenic, lead, and

 5 mercury into our bodies. People near coal ash

 6 dump sites have a one in 50 cancer rate.

 7 What I would like to say to those in

 8 power, Stop telling yourself that these crises

 9 won't affect you. Do you even care enough about

 10 future generations enough to change this?

 11 If the coal ash spills, it will get into

 12 your body. If we pollute our world, we pollute

 13 ourselves, and when kids take over, we will have

 14 all of this pollution to clean up, and we didn't

 15 get ourselves into this mess. We simply inherited

 16 it. So I'm asking all of you to clean up your act

 17 right now.

 18 Thank you.

 19 MS. BACHILLERI: Hi. My name is Carl

 20 Bachilleri, and I'm a 10-year-old Earth Guardian,

 21 and I'm here today because I heard that there was

 22 piles of coal ashes building up around our world
 347

 1 and around where I live, and that kind of worried

 2 me because I know that it goes in our water and it

 3 can get, like, everywhere that --

 4 I walk around barefoot most of the time,

 5 and I'm worried that I'm going to get myself

 6 really sick, and you guys have heard all the facts

 7 about what this whole (sic) can do, and I just

 8 want to say that, like Harper said, my generation

 9 is going to be the one that's going to have to

 10 clean it up, and it's just another one of those

 11 subjects that we're going to have to take care of.

 12 So if you guys can help us now by making

 13 a change, I would really appreciate it.

 14 Thank you.

 15 MR. DELLINGER: 103.

 16 MS. AMERMAN: Good evening. My name is

 17 Laila Amerman. I'm a student at CU Boulder, and I

 18 am a coordinator for the Sierra Student Coalition

 19 at CU, and first of all we would like to applaud

 20 the EPA for looking into the issue of regulating

 21 coal ash. It's awesome that you guys are

 22 considering it.
 348

 1 It's unfortunate that since TVA happened

 2 and that that was what brought all the attention

 3 to it, but that seems to be a recurring theme.

 4 When it comes to big companies, they seem to just

 5 create all this waste and not care about where it

 6 goes and what's in it.

 7 And that's overall the message that I'm

 8 taking away from all this is that we're asking to

 9 make sure everyone understands what's in our waste

 10 and where it's going and whether or not it can

 11 affect our communities and our ecosystems and the

 12 environment on which we depend and our health, our

 13 bodies on which we need in order to be able to be

 14 a productive society.

 15 I think everyone here has talked about

 16 spills and negative facts and all of those sorts

 17 things, so I don't want to dwell (sic) into that,

 18 but I appreciate that you guys are looking into

 19 it, and I do hope that you support Subtitle C.

 20 MR. DELLINGER: Thank you. Number 97.

 21 I'm sorry I missed you earlier.

 22 MS. RICHARDSON: Hello. My name is Dr.
 349

 1 Roberta Richardson. I'm a practicing physician

 2 here in Colorado, and I'm also the president of

 3 the Colorado Chapter of Physicians for Social

 4 Responsibility.

 5 I came with my prepared remarks to read,

 6 but it's clear that you've been hearing that same

 7 stuff all day. So I'll just use my time to make a

 8 few additional points.

 9 One is that I was really alarmed to read

 10 about some modeling studies that the EPA have done

 11 about how long it actually takes for some of these

 12 toxic elements to migrate through the soils into

 13 the drinking water sources. And it turns out that

 14 it takes 75 to 100 years or so for some of more

 15 notorious things to reach their peak

 16 concentrations in wells from the time they leave

 17 the coal ash.

 18 And as some of the children have been

 19 pointing out, it's just unconscionable really to

 20 think about us saying that we're more concerned

 21 about money and the robustness of the coal and

 22 energy industry than what kinds of illnesses will
 350

 1 be heaped upon our children 75 to 100 years from

 2 now.

 3 I think it's kind of natural. I'm a

 4 psychiatrist, and because it's down the road, we

 5 tend to focus more on what's right in front of us

 6 and the immediate sorts of rewards.

 7 So I'm asking the EPA on behalf of

 8 physicians who would really very much rather

 9 prevent things than have to try to cure cancers

 10 and deal with the myriad kinds of chronic

 11 illnesses that we really didn't do much about, to

 12 think about those future generations and do what's

 13 necessary now.

 14 And just one more brief comment. I know

 15 that one of the major complaints from the industry

 16 who wants Subtitle D instead of Subtitle C is that

 17 if you designate coal ash as a hazardous waste

 18 that that will put a stigma on coal ash and

 19 interfere with the ability of the industry to sell

 20 and to reuse in so-called beneficial uses.

 21 Well, I'd just like you to think about

 22 the stigma attached to coal ash when people are
 351

 1 sick and dying. That seems a little more

 2 stigmatizing to me.

 3 So thank you very much for the

 4 opportunity to talk tonight.

 5 MR. DELLINGER: Thank you. 111, 112,

 6 246, and 247. Are Number 111 or Number 112 here?

 7 Okay. 246. All right.

 8 MR. SULLIVAN: Hello. I'm John

 9 Sullivan. I want to say thank you, first of all,

 10 for letting us speak. Also I want to say I'm

 11 definitely opposed to D, big time. I support C

 12 because it's the only option.

 13 But I would like to agree with some of

 14 what people have said that coal -- I don't even

 15 know why we are using coal today. It's an archaic

 16 form of energy. We're in the 21st century.

 17 There's absolutely no need for it. The coal

 18 industry has had a free ride since the industrial

 19 revolution. There's absolutely no need for it to

 20 continue. Enough is enough.

 21 I am a teacher -- a high school teacher,

 22 and I was teaching about the progressive unit
 352

 1 these past couple weeks. We've been looking at

 2 primary source documents of New York City and

 3 Chicago tenement housing, the living conditions,

 4 looking at work conditions that people worked in

 5 factories.

 6 And I say, Look at these conditions.

 7 These are horrendous. This can never happen

 8 again. You know, the owner -- and I say, This

 9 will never happen again because we have government

 10 regulation. There are people that fought to

 11 protect us.

 12 The same thing back then, the owners of

 13 the tenement houses, the owners of the factories

 14 said legislation will kill us. You can legislate

 15 this. This will kill us. We can't provide clean

 16 living conditions for immigrants. We can't

 17 provide clean working conditions and still expect

 18 to make a profit.

 19 Yet what has happened? We can do it,

 20 and it's the same argument that's been used over

 21 and over and over again. And I sit here and I am

 22 furious that we even have to talk about this, and
 353

 1 I'm so sick of reading about private interests

 2 winning out over the health benefit of society.

 3 As the gentleman before spoke about the

 4 rivers that he works on, think about the

 5 billion-dollar industry of tourism for outdoor

 6 recreation. Why aren't those private -- why

 7 aren't those individual businesses considered?

 8 In the United States, you know, we talk

 9 about how we are so proud of our small business

 10 and the entrepreneurial spirit of America.

 11 However, we don't care. Our government only cares

 12 about supporting the corporate Goliath, and it

 13 sickens me.

 14 So also, I don't know if I can ask

 15 questions, but did the EPA come up with option D?

 16 And if they did, I don't know how you guys can

 17 consider yourself a protection agency of the

 18 environment because D looks like it was written by

 19 a lump of coal.

 20 I mean, I don't even get that. I was

 21 laughing, but not because I thought it was funny,

 22 but because I didn't know what else to do.
 354

 1 So please do C. And thank you for your

 2 time.

 3 MS. SEGAL: Hi. Lynn Segal from

 4 Boulder. Hi, Alexander, Kendra, Laurel, Bob.

 5 Funny that we meet here this way; that we're all

 6 here in this time and space.

 7 You're all the experts, and still the

 8 most expert person is still unknowledgeable. I

 9 don't envy your decision, you know, your having to

 10 be in this position.

 11 My mom died of leukemia. We lived in

 12 Salt Lake City. There was above-ground testing.

 13 We were drinking skim -- you know, powdered milk,

 14 you know. I can never prove, you know, why my mom

 15 died. I need my mom now more than I ever needed

 16 my mom, you know, in this economic depression.

 17 When -- when we can put solar -- you

 18 know, my shirt here. I'm working for this issue

 19 to be in Boulder where we're trying to negotiate a

 20 clean energy future outside of Xcel possibility.

 21 You know, how do you choose these tradeoffs, you

 22 know.
 355

 1 How many lives -- in war how many lives?

 2 You know, we all know this stuff, but it's hard to

 3 see people having to die and having to make

 4 choices. One life, you know -- even one life

 5 matters so much.

 6 I can't echo what Becky English said.

 7 It was on my list, and I'm so glad she said it

 8 about the precautionary principle and the hope for

 9 the future of this world that we can do.

 10 We can put our money instead of fueling

 11 a cycle of, you know, places where these benefits

 12 can happen for coal ash; that we can instead fuel

 13 that money towards battery technology for storage,

 14 for utility-grade storage, you know, for --

 15 I go to every renewable -- I live in a

 16 university town, and I go to every renewal energy

 17 thing I can think of.

 18 You know, I'm not a professional. I'm

 19 an ultrasound technologist. I've been unemployed

 20 for a couple years in this economy, but I see so

 21 much possibility and so much future in what can be

 22 done and ideas that we don't even have yet and in
 356

 1 all the people, in all stratified parts of our

 2 economy that need to be included that can't be

 3 discounted because of lead paint and poverty, you

 4 know.

 5 The hope and the future of this economy,

 6 as people have spoken about, tourism and

 7 everything, is in the area of renewables, and

 8 we're going to have enough trouble determining

 9 certain toxic effects of that without this too.

 10 So the pathway is C.

 11 Thank you for listening, and I'm not

 12 sorry I'm crying.

 13 MR. DELLINGER: Thank you very much.

 14 Number 248 and 249.

 15 MS. GRIFFIN: Hi. My name is Mildred

 16 Griffin, and I'm with the Sierra Club, and I live

 17 in Adams County, and my mother too died of

 18 leukemia, and she lived in Virginia, and there's a

 19 lot of coal mines there.

 20 But anyway, I am so in favor of you

 21 regulating, and I'm so in favor of Subtitle C. We

 22 need the regulation. Our air, our water. I'm a
 357

 1 parent. I'm a grandparent. I'd like my children

 2 to live in a clean atmosphere. I'd like the whole

 3 world to live in a clean atmosphere.

 4 We just don't need the hazardous waste.

 5 I think we've all said it here today. I feel very

 6 strongly about it.

 7 Thank you very much for letting me talk.

 8 MR. DELLINGER: Thank you.

 9 MR. FRENCH: Hello. My name's Keith

 10 French. I live in Denver. I'm a member of the

 11 Sierra Club, and really I'm coming as a concerned

 12 citizen.

 13 I mean, from all the comments we've

 14 heard, I mean, it certainly sounds like, you know,

 15 Subtitle C is kind of the way to go, but I guess

 16 one thing that hasn't been talked about at all is

 17 the costs of what this -- what impact this is

 18 going to have on the cost of coal, and my point

 19 being that here again is an effect of coal or a

 20 fossil fuel or anything that is not incorporated

 21 into the price of the product.

 22 I mean, we talked about, well, how
 358

 1 renewable energies are more expensive, they're not

 2 competitive. So we have to keep burning coal or

 3 oil or whatever.

 4 But the problem is that, you know,

 5 whether it's not taking care of coal ash properly,

 6 whether it's not taking care of mountaintop

 7 removal or, you know, filling in valleys in West

 8 Virginia, whatever. These costs are not truly

 9 accounted for in the price of product.

 10 So is this going to cost something? You

 11 bet it is. Taking care of the coal ash, should it

 12 be passed on to the consumer? I say yes,

 13 absolutely, because when you add in all these

 14 costs, all of a sudden the economics change and

 15 other types of energy become more -- more -- you

 16 know, more desirable or cost-effective.

 17 So that's all I have to say, but I'm

 18 speaking in favor of Subtitle C.

 19 MR. DELLINGER: Thank you. Numbers 111,

 20 250, and 251.

 21 MR. LEWIS: Good evening. My name's

 22 Dale Lewis. I live in Adams County, and I wanted
 359

 1 to speak about the regulations that are -- you all

 2 are considering.

 3 I support Subtitle C marking this as

 4 hazardous waste. I just want to make a few

 5 comments on some studies that I have found

 6 regarding this. I know that some of the coal

 7 industry is using coal ash in the burn-off in

 8 another industry.

 9 It's starting to be used in drywall, dry

 10 board. It's being used as -- in concrete, what

 11 they call portland cement.

 12 And I found a study that was done at

 13 North Dakota State University, it's called Coal

 14 Combustion Byproduct Diagnostics Number 2, and it

 15 talks about how the industry says, Well, to have

 16 the coal ash burn off and cause any mercury to

 17 come out of it, you have to burn at it 170, and we

 18 don't even come close to burning at 170 degrees to

 19 get what we want.

 20 Well, the two -- well, there's actually

 21 seven scientists in the Department of Chemistry at

 22 North Dakota State University that got mercury to
 360

 1 come out of coal ash burning at 140 degrees, and

 2 it was above acceptable levels.

 3 And there's also another study that was

 4 done by the University of North Dakota in which

 5 they talk about the different methods that are

 6 used, and it talks about the fact that the

 7 preferred method, not only when they're trying to

 8 make portland cement, they tested it, and within

 9 four years the cement was degrading to the point

 10 that it was putting off hazardous waste.

 11 So the coal industry decided, well,

 12 we'll just add fly ash to it, and fly ash, when

 13 they use it, puts off arsenic, uranium, and

 14 mercury.

 15 So I think this needs to be tested and

 16 not by the industry, because I truly believe

 17 industry is operating under the assumption that

 18 they have to make a profit and that they only

 19 answer to shareholders.

 20 And if it's not regulated and you let

 21 them regulate themselves, it won't work because

 22 they have no financial interest to do so. And you
 361

 1 can't convince them of something when it's not in

 2 their financial interest to do so. So I would ask

 3 that you do Subtitle C.

 4 Thank you.

 5 MR. DELLINGER: 250. Okay. 251. Is

 6 Number 250 in the room?

 7 MS. THOMPSON: Hi. My name is Sarah

 8 Thompson, and I'm a resident of Denver.

 9 I believe that we need to harshly

 10 regulate coal ash disposal. This is a time for us

 11 to stand up for a better future, not just for

 12 ourselves but those that will come after us.

 13 It's quite obvious that the toxins in

 14 coal ash are detrimental to our health and

 15 wildlife and, of course, our waterways. But

 16 beyond that, as the Environmental Protection

 17 Agency you shouldn't be catering to industry.

 18 And rather than considering Subtitle D

 19 and discussing proper ways of dealing with toxic

 20 waste from archaic energy sources, we should be on

 21 the way to implementing clean, renewable energy

 22 such as wind, photovoltaic, GEOS, solar, thermal,
 362

 1 waste energy, and biomass.

 2 They are solutions to the issues at

 3 hand. Stand up today for our future and the

 4 future of our loved ones, and take this baby step.

 5 Vote in favor of Subtitle C.

 6 Thank you.

 7 MR. DELLINGER: Thank you.

 8 MS. HARDIN: Hello. I'm Gina Hardin,

 9 and I'm an attorney in Denver, and I appreciate

 10 this public process, and hopefully you will

 11 understand the gravity of the situation and not

 12 just listen but don't take action as appropriate.

 13 You know, all of this controversy about

 14 coal ash, about the mountaintop removal, and about

 15 our subsidies of coal, it's really about an

 16 industry whose time has come to end, to transition

 17 to clean, renewable energy, and the industry's

 18 attempt and the government's attempts to support

 19 that industry for fear of losing the jobs that are

 20 associated with coal.

 21 But the -- it is clear from numerous

 22 studies that energy efficiency is -- it provides
 363

 1 more jobs than coal. Wherever mountaintop removal

 2 is, there's less employment, more poverty than

 3 other areas.

 4 The whole premise of the necessity to

 5 continue to rely upon coal is based -- is a false

 6 premise, and it's time to transition to a clean

 7 energy process, and let's get on with it.

 8 Thank you.

 9 MR. DELLINGER: Thank you. Now I want

 10 to make sure that -- we've gone through all the

 11 numbers a bunch of times, but I want to make sure

 12 that anybody who wants to speak will have the

 13 opportunity to speak.

 14 So is there anybody else in the room

 15 right now who has signed in and is ready to speak?

 16 UNIDENTIFIED SPEAKER: Life's short.

 17 MR. DELLINGER: All right. What are

 18 your numbers? Come on. If you've got numbers,

 19 that will be great.

 20 UNIDENTIFIED SPEAKER: I have a number,

 21 but I do --

 22 MR. DELLINGER: Go sign in real quick
 364

 1 while they're speaking, and then we'll get you on.

 2 UNIDENTIFIED SPEAKER: Hi. Thank you

 3 guys so much for giving us the opportunity to

 4 speak. I know it's been a long day, so I'll keep

 5 this short.

 6 I'm basically just here to ask you guys

 7 to do the right thing. This really isn't that

 8 hard of a choice. We can either protect families

 9 around the country from arsenic and lead and

 10 radioactive compounds, or we can let the coal

 11 industry continue to force normal people to bear

 12 the costs of burning coal with their lives and

 13 with their health and with their well being.

 14 We're so much better than this, and no

 15 one should have to worry about their lives because

 16 the coal industry doesn't want to clean up their

 17 act. No one should have to worry about their

 18 health or their family's health because a few

 19 people are worried that labeling a clearly toxic

 20 substance toxic is going to impact their bottom

 21 line.

 22 I know you guys want to do the right
 365

 1 thing. No one wants poison in our water. So

 2 please support Subtitle C, and thanks again for

 3 giving us time to speak.

 4 MR. DELLINGER: Thank you.

 5 MS. BEST: Thank you again for allowing

 6 us to speak here, and I know it's been a long day.

 7 So thanks. My name is Diana Best. I'm a resident

 8 of Denver, Colorado. I'm also -- I work for

 9 Greenpeace. I represent the voices of over 8,000

 10 members in the Colorado state alone and many more

 11 across this region.

 12 I recently had the privilege of speaking

 13 with several people from Appalachia, many of whom

 14 can't drink the water coming out of their own

 15 faucets. And while these stories are shocking,

 16 they're not unique to Appalachia.

 17 Whether you live in an area recovering

 18 from the Tennessee coal ash spill or really you

 19 live anywhere else in this country, coal ash is a

 20 serious threat to our health and to our quality of

 21 life. The consequences could be devastating, and

 22 they already are, in fact.
 366

 1 Time and time again industry has proven

 2 that it will put profits over the health and well

 3 being of the public, and to presume that industry

 4 can or will ever regulate itself is absurd.

 5 It's the responsibility and the mission

 6 of the EPA to protect the citizens of this country

 7 from abuse and exploitation of entities driven by

 8 profit. We look to you and we depend on you to

 9 protect our interests, our health, and our

 10 collective environment.

 11 Subtitle C is the only option that will

 12 truly enforce the safe handling and disposal of

 13 coal ash and support the people affected by toxic

 14 coal ash by keeping it out of our rivers and out

 15 of our drinking water and out of our community,

 16 period. Coal ash has proven toxic. The public

 17 should not be exposed to it, period.

 18 Thank you so much.

 19 MR. DELLINGER: Thank you. Number 252.

 20 MR. HOFFMAN: Thank you. My name is

 21 Chris Hoffman. I am a citizen of Colorado, and

 22 I'd like to add for your deliberation an image.
 367

 1 You've heard the statistics. You've

 2 heard the data, the toxicology of coal ash. The

 3 image I'd like to give you is an image in the

 4 mountains. I was hiking with a friend on a road

 5 that goes up to the top of Mount Evans, and we

 6 found a pile of coal, a small -- maybe 8 feet in

 7 diameter that was probably left over when they

 8 built that road in the early part of the last

 9 century.

 10 And there we were surrounded by this

 11 beautiful mountain meadow, and there was nothing

 12 growing on the coal. It was sterile. It was

 13 toxic. And if that's what we're dealing with,

 14 then I think we need to keep that out of our

 15 environment.

 16 We need to keep it out of our drinking

 17 water. We need to keep it out of our air because

 18 nothing grows. Just visualize that black coal --

 19 potential coal ash and all this beauty around it

 20 and nothing's growing there and nothing had grown

 21 through for the last almost 100 years.

 22 Thanks.
 368

 1 MR. DELLINGER: Thank you. Number 253.

 2 MS. REED: Hi. My name is Sarah Reed,

 3 and I'm a citizen of Colorado, and I didn't sign

 4 up because I wasn't going to speak because I'm

 5 shy, but I -- other people's talks reminded me

 6 that we really have this opportunity to express

 7 opinions in a way that may affect policy. So

 8 thank you for this opportunity.

 9 And I don't think I can repeat too much

 10 except that I support regulation under Subtitle C,

 11 and I feel that I represent myself but also

 12 friends and family who couldn't be here today,

 13 didn't know this kind of thing is happening, but I

 14 know they share my opinion.

 15 And I guess one thing that occurs to me

 16 that has been mentioned a little bit, but I just

 17 wanted to reiterate, is I didn't have health

 18 insurance earlier this year, and it occurs to me

 19 that the relationship between people who have

 20 access to good health care and people who are

 21 exposed to these kinds of toxic chemicals tend to

 22 kind of go hand-in-hand.
 369

 1 And it really flies in the face of a lot

 2 of values and qualities that I think we hold very

 3 dearly in this country, and I wanted to make that

 4 point.

 5 So that's about it, and thank you so

 6 much for your time.

 7 MR. DELLINGER: Thank you. Are there

 8 any registered speakers in the room right now that

 9 would like to speak? We're -- I'm going to

 10 declare a 10-minute break, and we'll wait here and

 11 see if any other people end up coming to the

 12 hearing within that 10-minute period, and we'll

 13 wait around longer if -- you know, just to make

 14 sure.

 15 (Recess)

 16 MR. DELLINGER: We're going to start up

 17 again, and now I'll call Numbers 254, 255, and

 18 256.

 19 MR. ASPREY: Hi. My name is Tom Asprey,

 20 Boulder, Colorado. I wasn't going to speak

 21 tonight because I'm pretty much exhausted and a

 22 little brain-dead, but I really thank you for
 370

 1 coming here to let us -- to hear our words and to

 2 hear us.

 3 I have to admit, I have no faith in

 4 Subtitle D doing anything. Industry -- you know,

 5 we see repeated failures. I wish to voice my

 6 support for Subtitle C.

 7 I'd like to point out that if industry

 8 wants to claim that this is just dirt, then let's

 9 see them use it in their family's garden; let's

 10 see them drink water from watersheds that's have

 11 been polluted with this industrial toxic waste.

 12 Would you expose your children or your family to

 13 this stuff? I wouldn't.

 14 Coal ash is a cost of using an outmoded

 15 technology. The industry doesn't want to pay for

 16 its use of this outmoded technology, but they

 17 should. It's unfairly shifting the burden to

 18 other businesses, people, wildlife, society.

 19 Future generations will have to pay these costs.

 20 We need to stop this.

 21 Thank you.

 22 MR. DELLINGER: Thank you.
 371

 1 MS. RAE: Hi. I also wasn't planning on

 2 speaking tonight, so gathering my thoughts. My

 3 name is Leila Rae, and I'm from the Four Corners

 4 area.

 5 And I don't know if you've been down

 6 there, but they're trying to build a third

 7 coal-fired power plant in, like, a five-mile

 8 radius, which is crazy. The air there is already

 9 super clogged.

 10 And I really just -- I think it's a joke

 11 if anybody thinks that the industry is ever going

 12 to do anything to, like, make coal mining and

 13 coal-fired power plants not a complete

 14 environmental abomination under their own free

 15 will, because all they care about is giving cheap

 16 to consumers and making the most money possible.

 17 And I also -- I spent some time in West

 18 Virginia last year. I don't know if you've been

 19 there, but it's pretty much an environmental

 20 apocalypse. Over 500 mountains have been

 21 destroyed in the past few decades as mountaintop

 22 removal has been happening, and it's one of the
 372

 1 poorest regions in the nation.

 2 And so I also have little faith that --

 3 in the EPA to do very much because there hasn't

 4 been very much environmental protection from the

 5 EPA. Like, mountaintop removal mining happens.

 6 Like, how the heck are you protecting the

 7 environment? Like, that's craziness to me.

 8 Really, like -- and I also --

 9 We have to do what we can to, like,

 10 prevent another disaster like what happened in the

 11 Tennessee Valley Authority in 2008 from happening

 12 again. It wasn't the first time that's happened,

 13 and what's weird is there was really not very much

 14 press coverage about it, which is, like, something

 15 I don't get. It's one of the hugest (sic)

 16 environmental disasters that we've seen in the

 17 United States.

 18 And so we need to move away from coal in

 19 general, but while we're still using this

 20 disgusting crap that's full of, like -- the ash is

 21 full of mercury and arsenic, and if that's not

 22 toxic, I don't know what is.
 373

 1 So in the meantime while we're still

 2 using this stuff, like, let's do something to keep

 3 it from poisoning the environment and poisoning

 4 people.

 5 In West Virginia cancer is an epidemic.

 6 People there are dying like crazy rates.

 7 Communities, almost every person has multiple

 8 people in their family who've died of cancer.

 9 That's, like -- yeah.

 10 Let's do something. You know, get it

 11 together. Protect our environment, please,

 12 because, like, we need it for the future. I care

 13 about my grandchildren, and I care about their

 14 children, and I care about this planet, and I care

 15 about humans. So let's do it.

 16 MR. DELLINGER: Thank you.

 17 MR. ROYSTER: Good evening. My name is

 18 Matt Royster, and you know, many years ago we --

 19 the discovery of coal caused us or allowed to us

 20 do some pretty great things in this country, from

 21 heating homes to doing more things with metal to

 22 moving locomotives across the country, and all
 374

 1 those were good. So coals's earned its right --

 2 its place in history, I believe.

 3 But now it's time for it to be part of

 4 our history and not -- not our present. We have

 5 so many other opportunities that are clean, that

 6 do not have all of the bad stuff that coal brings

 7 to us.

 8 I was just riding up Light Rail just a

 9 few minutes to go to come here tonight, and two

 10 120-car trains of coal were heading south and

 11 full, and two 120-car trains of coal were heading

 12 back to Wyoming to reload, and I -- my

 13 understanding is that these trains that are --

 14 Again, 120 cars full of coal. I've

 15 counted four of them. They keep the average

 16 coal-fired power plant going for only 24 hours.

 17 I'm sure that you're aware that over a billion

 18 tons of coal get burned up every year just so we

 19 can flip on lights, et cetera, et cetera.

 20 But not at my house. I'm fortunate to

 21 have some photovoltaic and backup device of wind.

 22 But I really think we can all go there, and I
 375

 1 really hope that you can help us do that.

 2 I very much support Subtitle C. I think

 3 it is much more the better of the two

 4 opportunities here, C and D. So I support C and

 5 really need you all to be able to oversee what's

 6 going on, and so please know that, because between

 7 burning of coal and all the mining, it is our

 8 largest waste stream.

 9 I'm hoping that with the lining of

 10 future ponds, we can also take a look at the ponds

 11 that are already there, some of which have broken

 12 with incredible awful results, take a look at

 13 those and see if we can somehow get that material

 14 into lining just to take care of what we've done

 15 in the past.

 16 And I'm trying to hurry. This morning I

 17 was at my weekly toastmaster meeting, and

 18 obviously I'm not very good at toastmastering yet,

 19 but I'm working on it.

 20 And my friend Cathy walked in. I hadn't

 21 seen Cathy for six months because six months ago

 22 she called one of the leaders in the group and
 376

 1 said, Hey, my son has cancer, and I won't be

 2 attending for --

 3 MR. LIVNAT: Your time is up.

 4 MR. ROYSTER: May I talk just a little

 5 bit longer since we're at the end? Thank you,

 6 sir.

 7 MR. LIVNAT: We're at the end.

 8 MR. ROYSTER: I'll hurry. I'll wrap it

 9 up.

 10 Anyway, so I hadn't seen her for six

 11 months, and during the six-month multiple times I

 12 thought, I need to call my friend and see how her

 13 son's doing, how she's doing, how's the family,

 14 e-mail her, at least do something. Well, I didn't

 15 do anything for the last six months, and I'm

 16 embarrassed to tell you that.

 17 I take two things away from this story.

 18 One is that I believe there is a cancer, a big

 19 cancer, one of several in this country, and that

 20 cancer's name is coal. The second thing is that

 21 -- that I -- you all are the Environmental

 22 Protection Agency. Number one, I want to come to
 377

 1 work for you.

 2 The work you all do is so important to

 3 protect all of us, all over 300 million of us, and

 4 especially tonight I'm thinking of my four

 5 wonderful, amazing granddaughters and what kind of

 6 future we leave for them.

 7 So I ask you to not be like me. Don't

 8 -- don't not make the call, or don't, you know --

 9 don't do what I did and ignore what is so

 10 important, even though I thought of doing

 11 something about it. I ask you to please to be

 12 bold, be brave, set a new agenda for us out there,

 13 and help us get off coal and move forward in this

 14 great nation.

 15 Thank you very much.

 16 MR. DELLINGER: Thank you. Any other

 17 speakers?

 18 MS. KELLY: My name is Sunny Kelly, and

 19 so you want to know what people think about how

 20 the EPA should treat coal ash? With greater

 21 precautions as hazardous waste under enforceable

 22 federal standards, which would be Subtitle C,
 378

 1 which I believe is the right choice since coal ash

 2 contains mercury, arsenic, chromium, lead,

 3 radioactive elements, and so forth. Or should it

 4 be treated with no federal enforcement standard in

 5 the same way you've always treated it?

 6 Well, I want all people in these United

 7 States, no matter where they live, no matter their

 8 economic status, to be safe with safe drinking

 9 water. I'm sure that you do as well.

 10 Doesn't it follow that coal ash should

 11 be kept well away from people and where it cannot

 12 contaminate the drinking water and fragile

 13 ecosystems since it is toxic, and since the state

 14 regulation has been insufficient, it's kind of a

 15 "duh" moment.

 16 Do the right thing by the people.

 17 Protect the people and name coal ash for what it

 18 is, hazardous waste.

 19 When business or state government is not

 20 doing the right thing to protect the people from

 21 hazardous waste and processes such as coal

 22 production, you're our hope. Our tax dollars pay
 379

 1 you as sort of our earthly angels, if you will,

 2 watching over us, protecting us by regulating and,

 3 yes, dictating to business what it can and cannot

 4 do.

 5 Coal ash is and has always been

 6 hazardous waste and should be regulated as such by

 7 federal enforcement standards, and it should not

 8 matter what business wants. Business has its

 9 priority, profits. You have your priority, the

 10 safety of the people.

 11 So whether it's one of the 40 toxic

 12 sludge ponds here in Colorado or one in Tennessee

 13 like Harriman, yes, regulate coal ash as a toxic

 14 waste substance.

 15 Thank you for listening to the cry of

 16 the people for federal regulations, and thank you

 17 for everything you do to protect all the people of

 18 this nation.

 19 MR. DELLINGER: Thank you. Do we have

 20 any other -- any other registered speakers? Any

 21 unregistered speakers who want to go register and

 22 come back and talk? We're going to be -- we have
 380

 1 to be here until -- oh, okay.

 2 We have to be here until 9 o'clock, so

 3 -- at least most of -- some of us anyway.

 4 UNIDENTIFIED SPEAKER: Is there any way

 5 that you can tell us about what's going on with

 6 EPA, what some future plans are with regard to

 7 energy?

 8 MR. LIVNAT: Regarding this proposal?

 9 UNIDENTIFIED SPEAKER: This or anything

 10 else. I'd love to hear about it.

 11 MR. DELLINGER: We're doing mostly coal

 12 ash.

 13 UNIDENTIFIED SPEAKER: Okay. Fair

 14 enough.

 15 MR. KELLY: My name is Rich Kelly from

 16 Denver, Colorado, and I apologize for the lax

 17 decision to speak.

 18 I was reading through the proposals

 19 here. It says under both approaches proposed, the

 20 agency would leave the Bevill exemption for

 21 beneficial uses in coal ash. So what I was

 22 thinking is that neither of these approaches
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 1 really force the hand of going to an alternative

 2 power source to get away from coal because both

 3 approaches allow us to use -- reuse the coal ash.

 4 A third alternative I felt would be one

 5 that would allow the use of the coal until we

 6 could get away from it, but a bill for storage for

 7 using the coal, say, like a cubic foot costs some

 8 odd cents. That would force the hand to get away

 9 from coal if we agree that coal is something that

 10 we want to -- if we truly agree that we want to go

 11 to an alternative source of power. So that is

 12 what I was thinking about and felt I should speak

 13 about.

 14 Thank you.

 15 MR. DELLINGER: Thank you. Number 257.

 16 MR. LIVNAT: Just spoke.

 17 MR. DELLINGER: All right. I didn't

 18 have a name. And Number 90.

 19 MS. GLUSTROM: Good evening. I just

 20 walked in. I'm not so familiar with your

 21 procedures, but I wanted to thank you all very

 22 much. It's been a long day. I just walked in,
 382

 1 and I know you've been at it all day. So thank

 2 you very much.

 3 My name is Leslie Glustrom. I live in

 4 Colorado, biochemist by training, but I now work

 5 almost full-time on energy issues and the

 6 transition. So again, I want to thank you for the

 7 hearing. I want to register strong support for

 8 the subpart C option.

 9 And you've heard a lot of stories today.

 10 I'll just add one more. I don't live near a coal

 11 ash repository, but I -- like everyone else, I pay

 12 a utility bill, and when you pay that utility

 13 bill, as you come to understand these issues, you

 14 also understand that you're implicated in the

 15 decisions that are made.

 16 And so we live in Colorado here where

 17 Xcel is about 60 to 65 percent coal. One of their

 18 large coal plants is here in north Denver, the

 19 Cherokee Coal Plant, and I went on on tour of that

 20 coal plant about -- I think it was about two years

 21 ago now, and as we stood up on one of those kind

 22 of high, lookout places, we saw truck after truck
 383

 1 after truck -- big long semitrucks -- it felt like

 2 about every 30 seconds. I didn't actually time

 3 it. But I assume they are coal ash.

 4 So I asked the very nice worker who was

 5 there and obviously a very dedicated fellow and

 6 hardworking and in a sense proud of his work. I

 7 said, Is that coal ash? He said, Yeah. And I

 8 said, Well, you know, what do you know about its

 9 composition? Thinking about the arsenic and

 10 mercury and the lead and all this. And he goes,

 11 Huh?

 12 They really don't understand. It's not

 13 the worker's issue, but it is our job to

 14 understand what heavy metals do and to take every

 15 precaution and to no longer treat this as though

 16 it's something actually even less than household

 17 waste.

 18 And in your positions, I would just

 19 really ask you to have the courage to move this

 20 forward. We know that once it goes into landfills

 21 or impoundments, sooner or later, maybe our

 22 lifetime, maybe our children's generation or
 384

 1 grandchildren, but sooner or later those heavy

 2 metals are going to be in our water.

 3 It's really just a matter of kinetics

 4 how fast that happens. There's no avoiding that.

 5 When they're in coal in the ground, they're well

 6 sequestered. So once we've turn them into coal

 7 ash, they're much more mobilized.

 8 And I just really want to encourage you

 9 to stay with the subpart C regulations, to have

 10 that courage, and to thank EPA. I wasn't here for

 11 your introduction. So I'm not sure where this

 12 fits. I want to thank EPA for moving this

 13 forward. It is very long overdue.

 14 So thank you very much.

 15 MR. DELLINGER: Thank you. We're going

 16 to break for 10 minutes to see if any more

 17 speakers come along.

 18 (Recess)

 19 MR. HOFFMAN: This is Steve Hoffman,

 20 U.S. EPA. It's now 9 o'clock. We're officially

 21 closing the hearing in Denver, Colorado.

 22 (Whereupon, at 9:05 p.m., the
 385

 1 PROCEEDINGS were adjourned.)

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 386

 1 CERTIFICATE OF NOTARY PUBLIC

 2 I, Carleton J. Anderson, III do hereby

 3 certify that the witness whose testimony appears

 4 in the foregoing hearing was duly sworn by me;

 5 that the testimony of said witness was taken by me

 6 and thereafter reduced to print under my

 7 direction; that said deposition is a true record

 8 of the testimony given by said witness; that I am

 9 neither counsel for, related to, nor employed by

 10 any of the parties to the action in which these

 11 proceedings were taken; and, furthermore, that I

 12 am neither a relative or employee of any attorney

 13 or counsel employed by the parties hereto, nor

 14 financially or otherwise interested in the outcome

 15 of this action.

 16 /s/Carleton J. Anderson, III

 17

 18

 19 Notary Public in and for the

 20 Commonwealth of Virginia

 21 Commission No. 351998

 22 Expires: November 30, 2012