Richard Kinch 

August 25, 2009 

10:00 a.m. meeting 

EPA and representatives of the electric utility industry. 

In attendance were: 

Name Organization Email Address

Richard Kinch EPA kinch.richard@epa.gov

Quin Shea EEI qshea@eei.org

John McManus AEP jmmcmanus@aep.com

Donald McCloskey PSEG Donald.mccloskey@pseg.com

Jim Kohler EPA kohler.james@epa.gov

Jim Meiers Duke Energy jim.meiers@duke-energy.com

Ray Harry Southern Company lrharry@southernco.com

Jim Roewer USWAG jim.roewer@uswag.org

Matt Hale EPA/ORCR hale.matt@epa.gov

The nature of the discussions was as follows: 

Matt Hale gave a brief summary of EPA’s efforts to assess dam safety, and made the following 

points: 

• We are in the process of getting the 104(e) survey responses posted on the internet. 

• EPA has received initial contractor reports on the 22 site visits. (Richard Kinch indicated 

that we were awaiting comments from 4 states and 7 companies; we understood from 

industry representatives that actions have been taken to address deficiencies identified; 

and that they are concerned with posting the inspection reports without EPA 

acknowledging corrective steps have already been taken.) 

• Administrator Jackson was interviewed by 60 minutes. (Jim Roewer indicated that he 

was also interviewed.) 

• EPA intends to issue a proposed rule by the end of the calendar year. The rule will have 

a lead proposal and take comment on alternative paths. The package should get to OMB 

in early October. 

• There is a Federalism issue due to state and local government ownership of utilities, and 

EPA will be contacting such organizations in the September timeframe, including 

attending a September ECOS meeting in Montana. 

Industry asked a question about what other federal agencies will be interested in the 

rulemaking. Matt Hale indicated that process will largely take place when the rule goes to 

OMB, and he mentioned the USDA is doing research on the beneficial use of coal ash and is 

interested in this rulemaking. 
Industry asked about whether the proposal would address non-utilities and minefilling. Matt 

Hale indicated that these are issues we are looking at in the regulatory process, but there was 

nothing further he could say since there isn’t a definitive decision. 

Industry described their meeting with the Administrator as involving 7 CEOs and EEI. The 

meeting focused on climate change issues and included mention of coal ash and a suggestion 

by the Administrator that there should be a follow-up meeting on that topic. The industry 

and EPA discussed having quarterly meetings on climate change and other pertinent issues. 

Jim Roewer indicated the industry was not opposed to regulations, but that use of Subtitle D 

will be protective without harming beneficial use, and would take advantage of existing state 

regulations. He also mentioned that states have expressed similar views and that Subtitle C 

would increase cost without benefit. EPA was then given a listing of letters sent to EPA: 

• 21 letters from states 

• 2 letters from DOT/ Highway Groups 

• 2 letters from State Public Utility Commissions, and 

• 10 letters from Industry to EPA 

Industry mentioned a recent meeting with the OSWER AA where various parties indicated 

even contingent management under Subtitle C would be detrimental. They also said that 

even a proposal regulating CCR under Subtitle C would have a dampening effect on 

beneficial use. They then asked whether these letters and meetings convinced EPA of the 

damage Subtitle C would do to beneficial use. Matt indicated that the effect on beneficial 

use is hard to predict, there are a wide range of views, and that some uses don’t necessarily 

look like beneficial use such as the Gambrill’s site. 

Jim Roewer indicated a handful of states prohibit use if it is a hazardous waste, that stigma is 

real, and utilities are concerned about long-term liability. 

Industry asked what has changed in the last 9 years that would support a change in direction. 

Matt Hale responded that the 2000 determination identified potential issues. We have found 

additional damage cases, the revised risk assessment shows higher risks particularly for 

surface impoundments, there are recent concerns with sites like Gambrills and Battlefield, we 

didn’t previously look at catastrophic failure like TVA, and while practices are getting better, 

there are still gaps in state programs like addressing on-site waste management and surface 

impoundments. Matt Hale also stressed that we don’t want to adversely impact acceptable 

beneficial uses. Subtitle C does provide for federal enforcement and a permit program which 

provides for oversight to make decisions on acceptable groundwater monitoring well 

placement and implementation of other regulatory provisions. With regard for calls to have a 

municipal solid waste like rule, the statute gives us specific authority to deal with municipal 

solid waste that would not be available for other Subtitle D wastes. 
Jim Roewer raised the question of didn’t we have the same kind of concerns with regard to 

CKD. Matt Hale indicated the CKD proposal wasn’t very popular. Roewer emphasized the 

point that he agreed with marketers regarding the impact of Subtitle C on beneficial use. 

Industry asked if there were additional materials they could provide that would be helpful, 

for example their thoughts on alternative federal enforcement mechanisms to Subtitle C. 

Matt Hale indicted that EPA would consider regulatory suggestions they might provide and 

that such information would be placed in the docket for the rulemaking. 

Richard Kinch suggested that updated information on groundwater monitoring trends at 

existing facilities would be useful, as well as any information that have on why waste 

management practices may not reflect gaps that appear to be in certain state programs. 

Industry indicated that they have provided some groundwater data in response to an ICR 

from OECA. 

Industry mentioned that Subtitle C also caused them to have concerns with regard to the 

reliability of electric power generation. It was noted that EPRI is studying this issue further. 

Matt Hale briefly talked about minefilling and the NAS report – indicating that NAS said 

coal ash placement was useful and acknowledging that others say it is beneficial use. 

Industry asked whether a Subtitle C designation would result in increased liability under 

CERCLA. Matt Hale did not believe that would be the case. 

Jim Roewer mentioned the need to label some of the rail cars coming out of TVA, and 

expressed concern about long term use of ash and regulatory disposal issues after the end of 

beneficial use.