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COAL COMBUSTION BYPRODUCTS: POTENTIAL 

IMPACT OF A HAZARDOUS WASTE DESIGNATION 

ON SMALL BUSINESSES 

IN THE RECYCLING INDUSTRY 

HEARING 

BEFORE THE

COMMITTEE ON SMALL BUSINESS 

UNITED STATES 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

HEARING HELD 

JULY 22, 2010 

Small Business Committee Document Number 111-075 

Available via the GPO Website: http://www.access.gpo.gov/congress/house 


Congress.#13
HOUSE COMMITTEE ON SMALL BUSINESS 

NYDIA M. VELA ́ ZQUEZ, New York, Chairwoman 

DENNIS MOORE, Kansas 

HEATH SHULER, North Carolina 

KATHY DAHLKEMPER, Pennsylvania 

KURT SCHRADER, Oregon 

ANN KIRKPATRICK, Arizona 

GLENN NYE, Virginia 

MICHAEL MICHAUD, Maine 

MELISSA BEAN, Illinois 

DAN LIPINSKI, Illinois 

JASON ALTMIRE, Pennsylvania 

YVETTE CLARKE, New York 

BRAD ELLSWORTH, Indiana 

JOE SESTAK, Pennsylvania 

BOBBY BRIGHT, Alabama 

DEBORAH HALVORSON, Illinois 

SAM GRAVES, Missouri, Ranking Member 

ROSCOE G. BARTLETT, Maryland 

W. TODD AKIN, Missouri 

STEVE KING, Iowa 

LYNN A. WESTMORELAND, Georgia 

LOUIE GOHMERT, Texas 

MARY FALLIN, Oklahoma 

VERN BUCHANAN, Florida 

BLAINE LUETKEMEYER, Missouri 

AARON SCHOCK, Illinois 

GLENN THOMPSON, Pennsylvania 

MIKE COFFMAN, Colorado 

MICHAEL DAY, Majority Staff Director 

ADAM MINEHARDT, Deputy Staff Director 

TIM SLATTERY, Chief Counsel 

KAREN HAAS, Minority Staff Director 

(II) 

SUBCOMMITTEE ON RURAL DEVELOPMENT, ENTREPRENEURSHIP AND 

TRADE 

HEATH SHULER, North Carolina, Chairman 

MICHAEL MICHAUD, Maine 

BOBBY BRIGHT, Alabama 

KATHY DAHLKEMPER, Pennsylvania 

ANN KIRKPATRICK, Arizona 

YVETTE CLARKE, New York 

BLAINE LUETKEMEYER, Missouri, Ranking 

STEVE KING, Iowa 

AARON SCHOCK, Illinois 

GLENN THOMPSON, Pennsylvania 

(III) 

C O N T E N T S 

OPENING STATEMENTS 

Page 

Shuler, Hon. Heath .................................................................................................. 1 

Luetkemeyer, Hon. Blaine ...................................................................................... 2 

Bright, Hon. Bobby .................................................................................................. 3 

WITNESSES 

Feldt, Ms. Lisa, Deputy Assistant Administrator, Office of Solid Waste and 

Emergency Response, U.S. Environmental Protection Agency ........................ 4 

Benson, Dr. Craig H., Wisconsin Distinguished Professor, University of 

Wisconsin- Madison ............................................................................................. 17 

Adams, Mr. Thomas H., Executive Director, American Coal Ash Association ... 19 

Cooper, Ms. Lisa, Senior Vice President and Owner of PMI Ash Technologies, 

LLC ........................................................................................................................ 20 

Stehly, Mr. Richard D., President, American Concrete Institute, and Principal, American Engineering Testing, Inc. ......................................................... 22 

Gehrmann, Mr. William H., President, Headwater Resources, Inc. ................... 23 

Garbini, Mr. Robert A., President, National Ready Mixed Concrete Association ........................................................................................................................ 25

Bross, Mr. Jeffrey, President, Bross Construction ................................................ 27 

APPENDIX 

Prepared Statements: 

Shuler, Hon. Heath .................................................................................................. 31 

Feldt, Ms. Lisa, Deputy Assistant Administrator, Office of Solid Waste and 

Emergency Response, U.S. Environmental Protection Agency ........................ 33 

Benson, Dr. Craig H., Wisconsin Distinguished Professor, University of 

Wisconsin- Madison ............................................................................................. 40 

Adams, Mr. Thomas H., Executive Director, American Coal Ash Association ... 45 

Cooper, Ms. Lisa, Senior Vice President and Owner of PMI Ash Technologies, 

LLC ........................................................................................................................ 52 

Stehly, Mr. Richard D., President, American Concrete Institute, and Principal, American Engineering Testing, Inc. ......................................................... 78 

Gehrmann, Mr. William H., President, Headwater Resources, Inc. ................... 145 

Garbini, Mr. Robert A., President, National Ready Mixed Concrete Association ........................................................................................................................ 151 

Bross, Mr. Jeffrey, President, Bross Construction ................................................ 158 

Statements for the Record: 

Letter from American Coal Ash Association. to EPA ........................................... 161 

Letter from Full Circle Solutions, Inc. to EPA (SB Advocacy) ............................. 163 

Letter from EPA (SB Advocacy) to Full Circle Solutions, Inc. ............................. 166 

Letter from EPA to Hon. Heath Shuler ................................................................. 167 

Stehly, Mr. Richard D.,American Concrete Institute, and Principal, American 

Engineering Testing, Inc. .................................................................................... 168 

Statement from Mr. Jerry Liner, Carolina Stalite and Johnson Concrete ......... 196 

(V) 

(1) 

SUBCOMMITTEE ON RURAL DEVELOPMENT, 

ENTREPRENEURSHIP AND TRADE HEARING 

ON COAL COMBUSTION BYPRODUCTS: 

POTENTIAL IMPACT OF A HAZARDOUS 

WASTE DESIGNATION ON SMALL 

BUSINESSES IN THE RECYCLING INDUSTRY 

Thursday, July 22, 2010 

U.S. HOUSE OF REPRESENTATIVES, 

COMMITTEE ON SMALL BUSINESS, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 10:00 a.m., in Room 

2360, Rayburn House Office Building, Hon. Heath Shuler [chairman of the Subcommittee] presiding. 

Present: Representatives Shuler, Bright, Dahlkemper, 

Luetkemeyer, and Thompson. 

Chairman SHULER. This hearing is called to order. 

The subcommittee has called this hearing so that members might 

learn more about coal ash, the small businesses that turn coal ash 

into useful products and the concerns that these businesses have 

about the proposed Federal regulations that they believe may have 

a negative effect on their industry. We hear a lot of terms today 

in this hearing, like CCB, CCR, CCP and CCW. In essence, all 

these refer to coal ash. 

What we will focus on this hearing are the types of coal ash that 

are beneficially reusable. 

Coal ash contains elements that can be harmful to the environment and to human health unless it is properly stored or disposed 

of. 

The environmental community has long called for increased Federal regulations of coal ash in order to ensure greater protection. 

I am in complete agreement with this concept. The EPA has recently issued two proposals for regulating coal ash. One would regulate coal ash as a solid waste and would provide very limited Federal enforceability and may not provide adequate protection of the 

environment and human health. The other would list coal ash as 

a special waste under the Hazardous Waste Subtitle in the Resource Conservation and Recovery Act, Subtitle C. 

The second option is one that we will focus on today’s hearing 

since it has generated great concerns among small businesses 

across this country. These businesses, many of which are represented here today, have reason to believe that regulating coal ash 

under Subtitle C, even as a special waste, will open recycling operVerDate Aug 31 2005 20:20 Nov 12, 2010 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 G:\CLERKS~1\HEARINGS\TRANSC~1\57520.TXT DARIEN
2 

ations to added litigation and a stigma that will discourage the 

products and use of the products made with recycled coal ash. 

Some of these small businesses believe that these negative effects 

are already occurring within their industry. If the prediction of 

those in the coal ash recycling businesses are accurate, EPA regulation of coal ash under Subtitle C will greatly harm a multi billion 

dollar industry that provides thousands of American jobs and often 

results in reduced waste disposal and net carbon emissions. 

I am eager to hear their testimony today and the testimony from 

the EPA witness, Lisa Feldt, who will hopefully be able to shed additional light on this subject. 

I want to thank all the witnesses for being here today. 

And I now yield to the ranking member, Mr. Luetkemeyer, for 

his opening statement. 

Mr. LUETKEMEYER. Thank you, Mr. Chairman, for holding the 

hearing on this very important topic, one that I know is particularly pressing for many small businesses in both of our districts 

and all throughout the country. 

The Environmental Protection Agency will soon make a decision 

on how to regulate coal combustion byproducts, CCBs. EPA offered 

two regulatory options for classification of CCBs under the Resource Conservation and Recovery Act. It is my belief that classification as a hazardous waste under Subtitle C will be a disaster 

to the small businesses that recycle CCBs. 

Some CCBs have industrial uses, while others are essentially 

waste byproducts. One of the most useful CCBs is coal fly ash, 

which is a fine, powdery CCB produced by coal-fired electricity generators. Coal fly ash is incorporated in concrete. 

Montana’s Hungry Horse Dam, completed in 1953, was one of the 

first applications in which fly ash was used. Since then, at least 

100 major locks and dams using fly ash have been constructed 

under the direction of the U.S. Army Corps of Engineers, the U.S. 

Bureau of Reclamation or private engineering firms. 

In light of the CCB spill disaster at the Tennessee Valley 

Authority’s Kingston facility, I understand EPA’s raising concerns 

about the handling and storage of CCBs. We all want appropriate 

precautions to be taken and for the public health and welfare to be 

protected. However, slapping a hazardous label on fly ash and 

other CCBs without sound scientific evidence almost surely will 

eliminate their ability to be used in a beneficial manner by industry. Such a designation will also impose severe financial hardship 

on an industry dominated by small businesses employing tens of 

thousands of people throughout the United States, including my 

home State of Missouri. 

According to EPA’s own analysis, approximately 13.4 tons of coal 

ash are used in concrete or cement production annually. EPA maintains that the regulation of these uses will not be changed, so the 

agency did not examine what effects would result on the recyclers 

because of the proposed rule. But the hazardous designation could 

kill ash recycling enterprises that generate $5 billion to $10 billion 

a year in revenue for coal-burning utilities. In addition to the revenue lost, generators of CCBs will have to find a place for 60 million tons that now fill abandoned mines, incorporate into concrete 

or shore up eroding highway embankments. 

3 

Should EPA decide a hazardous waste management regime is 

necessary, the CCBs would quickly overwhelm the capacity of currently available hazardous waste landfills. A hazardous designation 

would raise the cost of coal ash disposal from $5 or $10 a ton to 

$150 a ton, a total of $10 billion to $15 billion more per year. 

Nor would that situation be helped by the recycling of CCBs. To 

the extent that regulations, especially under Subtitle C, impose additional costs to generators, they will pass those costs on to the 

beneficial reusers of CCBs. Increased regulation of CCBs would 

force recyclers to pass increased costs on to consumers, reduce 

prices to meet those of lower cost suppliers, or abandon the use of 

CCBs altogether. A rational producer will ultimately select the 

third option in an effort to ensure that its competitive position in 

the marketplace is not damaged. This only will increase pressure 

on landfills or surface impoundment storage of this waste. 

During the past 20 years, the EPA has considered whether to determine that CCBs should be hazardous waste, and each time they 

have found they should not. Nothing in the physical or chemical 

characteristics of these products has changed. What has changed is 

the fact that surface impoundments regulated under the Clean 

Water Act containing CCBs failed. That regulatory failure should 

not result in the regulation of CCBs as hazardous waste. 

It is my belief that the designation of fly ash as a hazardous 

waste is counter to the goal of sustainability or even good for the 

environment. CCBs increase the durability of the Nation’s infrastructure, thereby requiring less reconstruction and associated runoff of pollutants from construction sites. Fly ash is commonly accepted and used worldwide, and its use is a key strategy to sustainable construction, reducing hazardous waste disposal needs and 

limiting creation of greenhouse gasses. CCBs increase the durability of the Nation’s transportation infrastructure and double its 

useful life. The EPA has not considered any of this in its propped 

rule. 

If EPA continues down this path and resists the call from 121 

Members of Congress to abandon its preferred course of action— 

designating CCBs as hazardous waste—I believe that there will be 

sufficient bipartisan support to take legislative action to address 

EPA’s regulatory overreach. 

Again, thank you, Mr. Chairman, for holding this hearing. I look 

forward to hearing from the witnesses examining possible solutions. 

With that, I yield back. 

Chairman SHULER. I would like to thank the ranking member for 

his opening remarks. 

And now I would like to recognize Mr. Bright from the great 

State of Alabama. 

Mr. BRIGHT. Thank you, Mr. Chairman. It is great to be here. 

Very quick opening statement, and I am really looking forward to 

the testimony today. But I do want to thank you and the ranking 

member for holding this very important hearing. And I do consider 

it an extremely important hearing for my State and the people that 

I represent. 

As many of you know, coal combustion waste recycling generates an estimated $5 billion to $10 billion dollars in revenues for entiVerDate Aug 31 2005 20:20 Nov 12, 2010 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 G:\CLERKS~1\HEARINGS\TRANSC~1\57520.TXT DARIEN
4 

ties which produce CCW nationwide. Thousands of small businesses benefit from the beneficial use of CCW, which creates jobs 

and provides economic growth at a much-needed time in our history. 

In my home State of Alabama, the combination of ready-mixed, 

asphalt, and raw cement integrates around 450,000 tons of coal ash 

use in a slow year; it would be up to around 600,000 tons in a good 

market. 

With that said, this issue is important to me and many other districts throughout our great country, and I hope to learn more today 

about what we can do to protect the beneficial usage of coal ash. 

I want to thank our witnesses today. I am looking forward to 

your testimony. And I really appreciate your agreeing to come here 

and testify before this panel. 

And I really do look forward to your testimony and also our 

panel two testimony a little later today. 

So thank you very much, Mr. Chairman. I return it back to you. 

Chairman SHULER. I thank the gentleman from Alabama. 

Our first witness is Ms. Lisa Feldt. Ms. Feldt is a deputy assistant administrator of solid waste and emergency response in the 

U.S. Environmental Protection Agency. 

This office develops guidelines for the land disposal of hazardous 

waste and underground storage tanks. 

Mrs. Feldt, you will be recognized for 5 minutes. 

STATEMENT OF LISA FELDT, DEPUTY ASSISTANT ADMINISTRATOR, OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, U.S. ENVIRONMENTAL PROTECTION AGENCY 

Ms. FELDT. Thank you, Mr. Chairman and members of the subcommittee. As you indicated, my names Lisa Feldt. I am the deputy assistant administrator for the U.S. Environmental Protection 

Agency’s Office of Solid Waste and Emergency Response. Thank 

you for the opportunity to testify today on EPA’s coal combustion 

residuals—I will try to stay away from the acronyms—regulatory 

development activities. I will summarize my testimony, but I ask 

that my entire written statement be submitted for the record. 

Let me start by saying that we understand there are differences 

of opinion regarding how to regulate coal combustion residuals, or 

CCRs, as we commonly refer to them. 

I can assure you that we want to strike the right balance. We 

want to get this right. We must base our decisions and foundation 

in the law and the science. We must provide protection to human 

health and the environment in a way that also takes into account 

the significant environmental and economic benefits of beneficial 

use of CCRs, or coal combustion residuals. 

EPA Administrator Lisa Jackson has indicated her support for 

continued safe beneficial use as we evaluate CCR regulatory options for safely managing the disposal of the coal combustion residuals in our rulemaking effort. We seek a national dialogue on 

EPA’s proposal for addressing the risk, as we do in all our rulemaking efforts, for addressing the risk of managing CCRs under 

the Resource Conservation and Recovery Act. 

During the development of our proposal, administrator Jackson 

and Assistant Administrator for Solid Waste Emergency Response 

5 

Mathy Stanislaus met with representatives from States, from businesses, including those who beneficially use CCRs and are on your 

next—some of them on your next panel, and many environmental 

groups, as well as local communities. 

Including in a good faith effort to help get the data and information needed to strike the right balance in our rulemaking effort, we 

want to ensure that our ultimate decision—and let me say our ultimate decision, we have made no decision yet—is made based on the 

best available science and data and is taken with the fullest possible extent of public input. 

While our efforts are underway, I am mindful of the importance 

of allowing the rulemaking process to run its course, of waiting for 

the expected wide range of public comments and not appear to prejudging the issues associated with this complex rulemaking. Therefore, I may not be able to answer all the questions you have to me 

so that we allow that process to continue. 

Regarding EPA’s proposal, we have two alternative regulatory 

options and are currently taking comments on a wide cross section 

of issues. I would like to stress that under both regulatory approaches proposed by EPA, the agency would leave in place the 

current exemption for beneficial use of CCRs and thus would not 

alter the regulatory status of CCRs that are beneficially used. 

Large quantities of CCRs are beneficially used today in concrete, 

cement wallboard, and other contained applications that EPA believes would not involve exposure to the public to unsafe contaminants. Responsible environmentally sound beneficial uses of CCR 

conserve resources, reduce greenhouse gas emissions, lessen the 

need for waste disposal units and provide significant domestic economic benefits. 

We are seeking comment in the rule on all forms of beneficial 

use, as we have heard many different viewpoints. We remain committed to encouraging environmentally sound beneficial use of coal 

combustion residuals. 

CCRs that are disposed of, though, are one of the largest waste 

streams generated in the United States. CCRs contain constituents, such as arsenic, cadmium and mercury, which can pose 

threats to public health and the environment if improperly managed and disposed. Thus proper management of these waste 

streams—not the beneficial use of CCRs, but the waste streams 

that are disposed of—is essential to protecting public health and 

the environment. 

Prior to our recent regulatory proposal, EPA, as has been acknowledged here, has had a long history of regulatory efforts regarding CCRs. In May of 2000, EPA issued its regulatory determination that CCRs did not warrant regulation as a hazardous 

waste under Subtitle C of RCRA. EPA also concluded at that time 

that Federal regulations of a nonhazardous waste under Subtitle D 

of RCRA was appropriate. With respect to beneficial uses, EPA determined that the beneficial use of CCRs did not pose a risk that 

required Federal regulation. 

Since EPA’s May 2000 determination, we have continued to gather additional information that supports the need for regulation of 

CCR disposal. The catastrophic failure of the Tennessee Valley Authority surface impoundment retaining wall in Kingston Tennessee 

6 

in December 2008 and the release of more than 5 million cubic 

yards of coal ash into Emory and Clinch Rivers and surrounding 

areas has highlighted this issue for all of us. 

EPA determined that regulatory efforts had to be designed to 

also prevent future catastrophic releases as well as preventing 

other types of environmental damage associated with the disposal 

of CCRs in landfill and surface impoundments. 

As I mentioned before, EPA’s proposal, issued on June 21st of 

this year, includes two options. One alternative would list CCR 

when destined for disposal in landfill or surface impoundments as 

special waste subject to regulation under Subtitle C of RCRA, 

which would create a comprehensive program of federally enforceable regulations. 

Under the second alternative, EPA would regulate the disposal 

of CCR under Subtitle D of RCRA as a solid waste by issuing national minimum criteria and would be enforced through citizen 

suits or by the States. 

One of the issues that commenters have raised to EPA is that 

any regulation of CCRs under Subtitle C of RCRA will impose a 

stigma on their beneficial use and thus significantly curtail these 

beneficial uses. EPA has questions regarding this assertion and 

stated in the preamble to the proposed rule that if Subtitle C of 

RCRA was selected as the regulatory option, the management and 

disposal of CCRs would become more expensive and thus beneficially using CCRs would become attractive economically. 

Past experience with other waste regulated under RCRA Subtitle 

C suggests the increased cost of disposal as a result of Subtitle C 

regulations would create a strong economic incentive for increased 

beneficial use. 

However because this issue has been raised and because EPA 

strongly supports the environmental sound beneficial use of CCRs, 

EPA is seeking comment and data on this issue. 

In closing, I want to assure the members of the subcommittee 

and all of the witnesses appearing here today that EPA takes the 

concerns raised about the risk to human health and the environment; the potential impact on businesses large and small; on beneficial use; and a host of other issues regarding our CCR proposal. 

Thank you, Mr. Chairman. That concludes my prepared remarks. 

I will be pleased to answer any questions you or the subcommittee 

members have. 

[The statement of Ms. Feldt is included in the appendix.] 

Chairman SHULER. Thank you, Mrs. Feldt, for your remarks. 

Obviously, one of the most important things from this subcommittee is the impact on small businesses. 

And I have a letter here that is from the American Coal Ash Association asking the Administrator Jackson to do a formal review 

of potential impacts on the ruling of small businesses that recycle 

coal ash has. 

I have another letter here from the EPA denying that request. 

Did the EPA ever survey whether the small businesses in the recycling industry would be harmed by Subtitle C designation of coal 

ash? 

Ms. FELDT. Yes. We did a small business analysis for the entities 

that we were preparing to regulate, which was the small power 

7 

companies. We did an evaluation of the small business impact to 

the industry that we were proposing to regulate under either option Subtitle C and Subtitle D. 

We conducted extensive economic analysis in those areas to support the proposed rule. EPA analyzed the direct impacts on small 

facilities that are subject to the rule, the small power plants, 26 

percent, and found no significant economic impact on a substantial 

number of small entities. 

Since we are not regulating beneficial use under this rule, consistence with agency guidance, these facilities were not included in 

our small business analysis. 

We welcome through this rulemaking process any costs of impact 

data and recommend that it be submitted during the comment period and for the record. 

Chairman SHULER. Thank you. 

So from the small, the recyclers, there was no nothing, no survey 

done when it comes to the recyclers. 

Ms. FELDT. Again, we, the beneficial use of CCRs was exempt 

and remains exempt under either proposal, so we did not do a specific analysis on the recyclers. 

As I mentioned, we met with many of the recycling community 

and trade associations, including the American Coal Ash Association, and continue to receive their input and look for any specific 

comments and impacts through this rulemaking process. 

Chairman SHULER. Executive Order 12866 says that this analysis should include an assessment of all costs and benefits, including indirect cost. Why didn’t the EPA use this ruling for more indirect recyclers to use this ruling under the executive order? 

Ms. FELDT. EPA conducted under the Executive Order, which is 

on regulatory impacts, significant analysis on the proposed rule. 

This included the estimation of direct cost to the utilities, ancillary 

costs to government, groundwater protection benefits to the public, 

avoided structural failure benefits to the public, the indirect effects 

on beneficial use, the indirect effects on electricity prices and distributional effects on several groups, including small businesses, 

minorities and low-income populations. 

There were several effects that EPA could not quantify for this 

analysis. For instance, EPA did not quantify the ecological benefits 

of this rule. Even for those effects, EPA discussed the issues qualitatively. 

To the extent that EPA did not evaluate any direct or indirect 

effects or was unable to quantify the effects for the proposed rule, 

we would welcome, again through the comment process and the 

rulemaking, for the record submission of any additional information or data to help us as we develop the final rule. 

Chairman SHULER. But that is allowing the industry to respond, 

which is great, and I think the industry will respond. 

But what about the actual, the working of the EPA? I mean, it 

is part of the responsibility of EPA to go and look at this indirect. 

It says all, and I have it capitalized here. And I don’t know, it is 

probably not capitalized and underlined within the regs, but this 

is the impact of the recyclers. I mean, this is the small businesses. 

And the reason I ask this so much is because you have two proposals, one under C and one under D, and they are quite broad, 

8 

from one extreme to the other, very loose regulations to no to little 

regulations from the Federal Government, and very stringent regulations and almost to the point that its still under Subtitle C; that 

means that special waste is still going to be considered a hazardous 

waste. But I don’t know about you, but if it is considered hazardous 

waste and it is under Subtitle C, then that to me is, that will have 

a huge exact impact on the small businesses. 

So you have two proposals that are, in my estimation and others, 

is on opposite ends of the spectrum. And so often we need to come 

to that common ground. Hopefully that is where we can get to 

today, is to come to that common ground. But I think it would really be helpful if the EPA would conduct that indirect cost to the recyclers, indirect impact to the recyclers going forward. 

Is that something that could be done during this period of time, 

or is it already passed that during the public opinion that it can’t 

be addressed? 

Ms. FELDT. Again, we excluded beneficial use from the regulation 

under either C or D. 

We did look at indirect effects on the beneficial reuse from a 

bounding perspective, and I can get you some additional information that we looked at from that perspective. 

But certainly any comments that are submitted, either via this 

committee or through public comment process, we will look at and 

analyze in our final decision. 

Chairman SHULER. In the recycling process, especially in concrete, a huge amount, and I think the gentleman from Alabama 

and the ranking member also alluded to it, a huge amount of the 

coal ash is used in recycling back into cement and concrete. 

Was the, during this process in conducting the regulation, the 

proposals that you have, was carbon emissions ever a part of how 

much savings and lowering emissions based upon using this as a 

recycled product? And what is the—because it costs a lot of—there 

is a lot of carbon produced and energy consumed based upon the 

production of concrete and cement. And so was that ever taken into 

consideration during the process? 

Ms. FELDT. Yes, we looked at, in our benefits analysis, we looked 

at both the carbon footprint reduction as well as the disposal capacity, energy usage; all those factors we looked at in our beneficial 

analysis. And those discussions are found in the proposal. 

Chairman SHULER. Why do you feel that there is so much discrepancy between the two proposals? I may be naive, but to me, it 

looks like it is pretty broad within the two proposals. 

Ms. FELDT. Yes. The C proposal basically provides Federal regulation with specific Federal enforceability. 

The prime differences of the D regulation is the Federal enforceability aspect. 

But we want to consider comments on both. And both of them 

will require liners. Both of them require groundwater monitoring. 

Both of them require some form of corrective action in setting either a C or D proposal. 

It is really the enforceability issue, which is one of the key concerns for—but why we want to gather comment on both options. 

So, again, for the record, during this national dialogue and national 

review of the rule, we request all interested parties to submit their 

9 

comments on either the D or the C and what their perspectives are 

and what the data is to support either C or D. The agency has not 

taken a position one way or the other on that. 

Chairman SHULER. Under Subtitle D, does the EPA have authority and direct regulations to regulate the CCB disposals? 

Ms. FELDT. As I mentioned, we have, in the rule itself, we have 

extensive discussion on the differences and concerns raised between regulation under Subtitle D. 

Under Subtitle C it is a full cradle-to-grave management process. 

You know the prime issue is the enforceability. The Subtitle D 

is enforced either through citizen suits or by the States that promulgate Subtitle D regulations. 

Chairman SHULER. I went to the TVA site in Kingston, and I certainly saw the amount of devastation—is probably the best words 

to use—most of that problem obviously was how they, it was almost like stacking jello. It was so wet when they were disposing 

of it into the sites, that it was like stacking jello. And at a certain 

point, when the stack gets so high, something has to fall. 

So I certainly saw the devastation and the environmental impact 

it is going to have for not just a couple years but probably very, 

very long term to be able to see the impact. 

Hopefully we will get a chance to ask some more questions, but 

at this point in time, I will yield to the ranking member, Mr. 

Luetkemeyer for his questions. 

Ms. FELDT. Thank you. 

Mr. LUETKEMEYER. Thank you, Mr. Chairman. 

Mr. Chairman was very thorough in his discussion here. Let me 

just follow up on a couple of things. 

My concern is that we are trying to regulate something that back 

in 2000 EPA found that there was no problem for, so that we 

reached the decision that it is not warranted to regulate. And as 

a result, there was no risk to human health or the environment. 

There were no cases of damage to human health or the environment that has been identified. 

Now we are looking at doing that. And what has changed? 

Ms. FELDT. Let me just be clear. Our 2000 regulatory determination did propose regulation under Subtitle D as a solid waste. Since 

that time, we have gathered new information. We have damage 

cases that are part and parcel and discussed in the rule, and we 

can provide for the record that talk about the, not only the catastrophic failure that happened at Kingston— 

Mr. LUETKEMEYER. Wait, wait, wait. That is an impoundment 

problem. That is not a problem with the product itself. 

Ms. FELDT. No, and I was going to continue on, thank you. 

But Kingston was the catastrophic failure due to the stability of 

the dam. 

But we also have damage cases that talk about arsenic and mercury and selenium migration to groundwater and to surface water 

that potentially affect drinking water sources. And all those damage cases are identified in the rule itself. 

So, in 2000, we did not have that information. We continued to 

gather that information. Between 2000 and now, Kingston also 

happened, so we have looked at all the additional information that 

we have to support either a D or a C option. But, in May 2000, we 

10 

did determine that it was—regulation under D was appropriate as 

a solid waste. 

Mr. LUETKEMEYER. So, basically, you are saying that the problem 

is impoundment; it is not the product itself, because, look, if you 

have, we got a situation in my home State where we had a large 

water reservoir on top of a mountain. The reservoir broke. All the 

water ran down the mountain, flooded the stream. There was a 

massive flood. It washed everything along the way. That is a catastrophic event, as well. That was due to water. You can have this 

with anything. You can put salt into an impound area and have a 

dam break and go done the stream. That will destroy the area as 

well. I think it is an impoundment problem here that is the problem. You haven’t told me yet where the problem is with the product. 

Ms. FELDT. The problem with the product, and again, the damage cases that we have that we can submit for the record talk 

about leaching of the contaminants that are in the coal— 

Mr. LUETKEMEYER. We are leaching, those are from an impoundment area. 

Ms. FELDT. That are unlined, that are not lined, that do not 

have—many of them do not have liners—some of them do—that 

are not lined, that we have damage cases that show that those contaminants, arsenic, mercury, selenium, leach into the groundwater 

from these unlined units. 

Mr. LUETKEMEYER. Again, it is an impoundment problem. 

Ms. FELDT. It is an impoundment and landfill. And what we are 

proposing in the C or D proposal is to regulate the impoundments 

or landfills that, in many cases, are unlined. 

Mr. LUETKEMEYER. So what we have identified then is that there 

is an impoundment problem that we are trying to work with here. 

We need to find a way to make sure that we contain what is there. 

The product as it is used now in all the other uses you have not 

found a problem with that? 

Ms. FELDT. Right. What we are regulating— 

Mr. LUETKEMEYER. You said yes? 

Ms. FELDT. Yes—is the disposal and management from the impoundments and landfills themselves, which result—has resulted 

in catastrophic failures, in some instances, in migration of contaminants to groundwater and surface water. So that is what we are 

proposing to regulate under the D or C; not the safe and environmentally sound beneficial use of coal combustion residuals. 

Mr. LUETKEMEYER. So what we need to focus on here is, how do 

we dispose of it once it is sitting in an impound area, is that correct? 

Ms. FELDT. Yes. 

Once it is in the impound area, it is considered disposal. In the 

impoundment or the landfill itself, that is disposed coal combustion 

residuals. 

Mr. LUETKEMEYER. But at this point, you haven’t found a problem with its use in concrete or any other uses of the ash itself? 

Ms. FELDT. No, not at this point. 

In fact, what we call capsulated, encapsulated uses, and we 

again talk about this in the rule, those products are exempt from 

this rulemaking effort. 

11 

We are not proposing to regulate those under C or D. And we believe that fly ash and concrete, wallboard, et cetera, those are all 

considered capsulated uses and should continue. And the administration and Administrator Jackson supports the continued beneficial reuse of those products, and they would not be regulated 

under either the C or D option. 

Mr. LUETKEMEYER. I think that is a key point of the hearing here 

as well, because I think we want to make sure that we don’t describe this as a hazardous material that has been found and used 

for over 50 years. In my testimony here, we had one example back 

in 1953, and we haven’t had any negative impact from the usage 

of this material at this point. And there are other uses being developed as we speak. 

So as long as it is used, the product is encapsulated, as you say, 

we don’t have a problem. 

The problem is with the impoundment of it and how it is stored, 

and therefore, it can, if it is not stored correctly be a problem. That 

is where we need to focus. Is that the gist of your testimony there? 

Ms. FELDT. Yes, that is correct. 

Mr. LUETKEMEYER. One of the things that is concerning me also 

is during your determination of the costs of it, by raising, by looking at the impact of what your rules may do to the costs, say that 

the costs incurred by electricity generators would succeed in passing on all those costs to the customers, and therefore, its impact 

would be insignificant. 

That to me is a very laissez-faire approach to what is obviously 

a huge impact to the customers. It is just another way of putting 

more cost burden on the individuals and businesses who utilize, 

and everybody does, electricity. 

So I am a little, I guess, frustrated by the fact that the cost was 

looked at, and you say, well, because it is going to be passed on, 

it is not going to be significant. I am a little miffed at how they 

can come up with that as not being significant. 

Ms. FELDT. Let me, we have developed costs for each of the options in terms of costs and the benefits. We did do in our regulatory 

impact analysis for the proposed rule, we factored in that the national electricity prices averaged 8.84 cents per kilowatt hour. 

Assuming that 100 percent of the cost of the proposed rule would 

be passed on to the electric consumers, the regulatory impact analysis estimated that the average nationwide increase would be approximately .8 percent with local markets increasing anywhere 

from zero to 6 percent. And we can provide more information. 

But that was assuming that 100 percent would be passed on to 

the customers, and we, that was the analysis that we had, and we 

can provide more information. 

Mr. LUETKEMEYER. So you are going to raise somebody’s electric 

bill 6 percent? Is that what you just said? 

Ms. FELDT. No. We did the analysis. That is the analysis. Again, 

we have not made a decision on either C or D in terms of the proposal. We are still evaluating all options. 

Mr. LUETKEMEYER. But you said it is going to raise the individual 6 percent? 

Ms. FELDT. We are required as part of the rulemaking to do a 

regulatory impact analysis on the cost, and that was part of our 

12 

analysis that we looked on. And I am not making a statement that 

we are raising the consumer rates by 6 percent. That was the 

bounding case of our analysis. 

Mr. LUETKEMEYER. But you don’t think that is significant? 

Ms. FELDT. I am not, I am not prepared to say whether it is significant or insignificant. That was the bounding cost of our analysis. 

Mr. LUETKEMEYER. We have a lot of customers in here, I am 

sure, that think that would be pretty significant to raise it 6 percent. And I think there would be a lot of business folks—we are 

a small businesses committee—if their utility bill were raised 6 

percent, that would be pretty significant. I have a family in my district that if it raised 6 percent, they are out of business, quite 

frankly. 

Ms. FELDT. Again, we have not made a decision the C or D, and 

that was the bounding scenario that we looked at and are required 

to look at in our regulatory impact analysis, but we welcome any 

comment on that. 

Mr. LUETKEMEYER. Thank you, Mr. Chairman. I will stop right 

there. 

Chairman SHULER. I would like to thank the ranking member. 

At this time, I will yield to Mr. Bright from Alabama. 

Mr. BRIGHT. Thank you, Mr. Chairman. 

Ms. Feldt, thank you for your testimony today. As I said earlier, 

and that does concern me, a 6 percent increase. That could be a 

significant factor for some of the small businesses in my community. And I would like to get more information about that as you 

obtain it if you could supplement your statement here. 

Ms. FELDT. Sure. 

Mr. BRIGHT. The other factor, and I think the chairman and 

ranking member pretty much covered most of my concerns here but 

one, and that is, EPA has a real, very difficult balancing act here 

to protect the public, protect our environment, and also at the same 

time understand what affect you may have on the businesses out 

there who will be affected. And that is a major concern, and I appreciate that balancing act that you have to conduct every day. 

However, with that said, did EPA consider the potential affect 

and possibly negative affect it would have on the industry by designating CCB as a hazardous material? 

Ms. FELDT. We heard from many of the groups that you will be 

hearing from later on as well as different industry representatives 

and communities that we met with on the stigma of that designation. 

Mr. BRIGHT. You heard from them, but did you make a study or 

have they conducted a study of some type to see definitely what affect it would have on the industry out there? 

Ms. FELDT. We do not have any specific information that suggests—our position, as I stated in my testimony, is that beneficial 

use will actually increase with the designation under either C or 

D because of the economics. 

So we did not have any information that supports the stigma argument. We request in the proposal itself, request for comments on 

information and data that supports the stigma, and clearly, we will 

evaluate that as we make your final decision. 

13 

Mr. BRIGHT. Was there any study done or evaluation or assessment done by EPA on the encapsulated use of CCBs, in other 

words, even though you have clearly stated here today, and I am 

somewhat intrigued with your statement, you have no intention or 

this regulation has no intention of regulating useful or beneficial 

use of CCBs, is there any study out there that you know of or are 

aware of that there is a hazard to the public, to the general public, 

of encapsulated CCBs and beneficial use? 

Ms. FELDT. From what we have seen to date, encapsulated beneficial use, we have not seen any impact to the environment from 

that. 

We did receive a lot of input and comments, and we are requesting comments. We have stated that we believe capsulated beneficial use is completely protective of the environment, but we are 

seeking comment on all beneficial use, and specifically 

unencapsulated use, which in many cases also are very legitimate 

beneficial reuse and safe for the environment. But we are seeking 

comment in the proposal. 

Mr. BRIGHT. So would it be fair to say that you are continuing 

an ongoing assessment or study of potential hazardous use of encapsulated CCBs? Is that fair? 

Ms. FELDT. None of the analysis that we have done to date has 

shown any environmental harm from encapsulated use. If we get 

comment and data during this process from the full set of the public that is engaged on this, we will clearly evaluate that. 

Mr. BRIGHT. Thank you very much for your testimony. 

And Mr. Chairman, I will yield back the remainder of my time. 

Chairman SHULER. I thank the gentleman. 

I want to recognize Mr. Thompson from Pennsylvania for his 5 

minutes for questions. 

Mr. THOMPSON. Thank you, Mr. Chairman, Ranking Member, I 

appreciate this hearing. 

Thank you, Ms. Feldt, for your testimony. 

Two clarifications and then a possible solution I want to throw 

out there and get your opinion on, change gears a little bit. But the 

first clarification is from my last two colleagues that talked, you 

talked about electricity cost analysis and that your analysis up to 

this point has 6 percent, potential 6 percent rate increase. 

Did that analysis also include the other realities that maybe 

aren’t in place right now, but I think are, frankly, I think are 

threatening to drive up the cost, the cap-and-trade, some of the 

other related and unrelated EPA regulatory initiatives that are 

kind of outside of—that are occurring administratively that would 

push up the cost of fossil fuels? Deregulation in States like Pennsylvania, which right now, we are seeing a—I think we are going 

to see a huge jump in electricity costs. It is not in place now, but 

it would be at the time of whatever implementation as you make 

a decision. Or just the energy mix, I mean, States like Pennsylvania, we are blessed with over 60 percent of our electricity comes 

from coal, which is the most affordable and reliable. Were any of 

those factors which are—that last one is just a characteristic of 

Pennsylvania, but the other three, that are not in place now, but 

frankly, there is a real threat—I consider it a threat—will be in 

14 

place at the time that the EPA would implement this; was that 

considered in this cost analysis? 

Ms. FELDT. I will need to get back to you and submit that information for the record. 

I believe that these costs reflect the impact of our rule. But I will 

need to double check that and get back to the record for that. 

Mr. THOMPSON. Because those things are looming there. 

The other thing is, even if it is just 6 percent—and I would argue 

it is probably going to be much higher given what I just described 

of things that I think are, unfortunately, a looming threat to cost 

of electricity, especially in States like Pennsylvania, which we rely 

on coal, we value it—wouldn’t this, the byproducts that we are 

talking about today, the subject of this, when they are able to sell 

those for very qualified, wonderful uses to be able to take that fly 

ash and use it to build things, or to use it in different ways, that 

has got to drive up the cost of those. Those generators of electricity, 

who will produce that byproduct, they are going to absorb these 

new costs; any business model would tell you that if their costs go 

up, they have to raise the cost of what they sell these byproducts 

for. Would you agree with that? 

Ms. FELDT. I am not prepared to agree or disagree with that. I 

think what—we did not in this proposal regulate the beneficial use. 

Clearly, our analysis shows that we don’t have any information 

that supports a stigma argument for beneficial use, but we have requested comment, information and data to support that argument, 

and clearly we will evaluate that in our final analysis and decision. 

Mr. THOMPSON. Great. I think it is a reality, so I hope those who 

are, obviously, in that business, who would have those business 

models, would come forth with that type. I think it would be helpful for you to have that. 

I promised you a potential solution. You had acknowledged earlier that what we have is an impoundment issue, and so I just 

want to throw this out there and get your opinion on this. As I 

have looked at this, one of the things I have seen out there are 

things that deal with geosynthetics as a class of product that provides solutions for safe storage of coal combustion residuals until 

they are reused. And geosynthetic materials include liners, such as 

geomembranes, geosynthetic clay liners, structural reinforcement 

using geotextiles, geo grids, drainage applications using geo composite drains. Safety concerns regarding coal combustion residuals 

can be mitigated if storage sites are lined and the leach agent is 

prevented from entering the environment. You talked about that 

when we acknowledged that this was an impoundment issue. The 

geo composite draining systems draw the water out of the coal combustion residual slurry in the surface impoundment, rendering the 

material into a more solid and stable state. 

Now applying these geosynthetic solutions to the storage of coal 

combustion residuals, keeping them in a safe secure state until the 

materials can be recycled in the production of cement, wallboard, 

all the structural road base, all the things we have talked about 

that has been mentioned and many more, so since the future of 

coal combustion residual beneficial use industries and their employees are dependent upon safe secure handling and storage of 

material and since the geosynthetics provide for safe secure storVerDate Aug 31 2005 20:20 Nov 12, 2010 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 G:\CLERKS~1\HEARINGS\TRANSC~1\57520.TXT DARIEN
15 

age, do you support congressional action to direct the use of these 

geosynthetic systems or through action by the EPA to encourage 

use of these materials in regards to containment? 

Ms. FELDT. I certainly appreciate your suggestion, and under either proposal, again, the impoundments that we are regulating are 

impoundments that are used for disposable, not beneficial use. And 

we are proposing geoliners in either proposal. So I appreciate your 

comments. And that is how I will answer your question. 

Mr. THOMPSON. I appreciate it. And I look forward to you getting 

back to me in terms of those other factors— 

Ms. FELDT. Will do. 

Mr. THOMPSON. Regarding electricity analysis. 

Ms. FELDT. Will do. Thank you. 

Chairman SHULER. I thank the gentleman. 

At this point in time I would like to recognize the gentlewoman 

from Pennsylvania, another Pennsylvanian here, Kathy 

Dahlkemper for 5 minutes. 

Mrs. DAHLKEMPER. Thank you Mr. Chairman. 

Many of the questions and concerns that I had wanted to bring 

up have already been addressed. 

But I just have one question for you, Ms. Feldt. Would it make 

sense for Congress to give the EPA the authority to regulate under 

Subtitle D and create new disposal national standards that can be 

enforced at the same time avoiding that stigma of hazardous or 

special waste? 

Ms. FELDT. We have currently proposed two options in our rulemaking effort, and we are considering both options. Clearly, we 

would provide any technical support necessary, but we have not decided on any, either of those options right now. 

Mrs. DAHLKEMPER. So, at this point, just waiting for comment 

through the rules process? 

Ms. FELDT. Correct. 

Mrs. DAHLKEMPER. As I mentioned, Mr. Chairman, most of my 

questions have been addressed. 

Obviously, we are all very concerned about, my colleague from 

Pennsylvania has already mentioned the increased cost that Pennsylvanians are going to be incurring in utilities, and obviously, we 

are all very concerned about that for our businesses, for our individuals, and I certainly hope that you—I would also be interested 

in some of the information on how that came about. So I would appreciate if you could pass that on to me. 

Ms. FELDT. We will make sure to submit that for the record. 

Mrs. DAHLKEMPER. Thank you very much, Mr. Chairman. 

I have to yield back. I have to get to a markup in another committee so thank you. 

Chairman SHULER. Thank you. 

For the record, when you say you are getting back to us, can we 

get that back in 7 business days? 

Ms. FELDT. We will be glad to provide that. 

Chairman SHULER. Thank you. 

Any other member have any other questions they would like to? 

I just had a couple more that I would like to state. EPA says that 

if it is under Subtitle C regulations, that it will encourage recycling 

of coal ash? I don’t understand how it is going to encourage recyVerDate Aug 31 2005 20:20 Nov 12, 2010 Jkt 000000 PO 00000 Frm 00021 Fmt 6633 Sfmt 6633 G:\CLERKS~1\HEARINGS\TRANSC~1\57520.TXT DARIEN
16 

cling. I know EPA says it is because the disposal is going to be 

more expensive, so it is going to encourage people. But if it is put 

under C, then it is going to be looked at as a hazardous waste. And 

I just don’t understand how more people are going to recycle it if 

it is listed under C, just because the disposal cost is going to increase from up to zero to 6 percent increase. 

Ms. FELDT. We are requesting comment on the stigma argument 

and the real data as I indicated before. In the preamble to the proposal, EPA lists several examples which illustrate that hazardous 

waste or other materials subject to RCRA Subtitle C are used and 

recycled. These examples suggest that hazardous waste label does 

not impose a significant barrier to beneficial use. They include 

things like electric arc furnace dust, which is a listed hazardous 

waste; electroplating wastewater sludge, which is a listed hazardous waste; used oil that is regulated under RCRA Subtitle C 

standards. So we have actually seen the reverse trend to the stigma argument. 

But, again, we are asking for data and information from all the 

stakeholders and the industries to comment on the stigma argument. But we have seen in other cases the reverse, where recycling 

rates have actually increased because of the increased disposal cost 

and the economic aspect of that. 

Chairman SHULER. Well, thank you. 

And I want to thank the EPA and the staff for the work that 

they have done on this. I think there is still a lot of work to be 

done. And I think, as always, a compromise is much, much better. 

And for the recyclers, those people who are lowering the emissions, making better use of a product, making sure that, if we can 

utilize it in areas, that we don’t have to stack it on top of one another like happened in Kingston, Tennessee, that we can make a 

better use of that and utilization of the fly ash that will give us 

an opportunity for small businesses to continue to grow and not restrict those jobs. But I think we really got to come to a compromise. 

And I think, from this entire panel, and this is a very unusual— 

but the way Congress should be working and in a very bipartisan 

way. I mean, I think you have seen across the board here that we 

are in agreement that putting it in under Subtitle C may create, 

which has been indicated to us through multiple letters that we 

have received that says that the impact, the stigma under Subtitle 

C would have a devastating impact to small businesses. 

So we are really hoping that we can bring this back to the middle. We certainly all agree, I think, amongst us that the disposal 

part is the real issue here, where it is being disposed onsite, and 

having the geosynthetics and making sure that we can have a 

proper way to monitor and to regulate that in those site areas is 

the real issue. 

And sometimes in Washington, we get all caught up in things, 

and we forget about the small businesses. But this committee never 

forgets about small businesses. And it is across the board that we 

want to make sure that they are taken care of and it doesn’t have 

such a huge impact on them, because some of them are mom-andpop operations that have been in business for a very long time, conducted themselves in the appropriate manner, and look at the posiVerDate Aug 31 2005 20:20 Nov 12, 2010 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6633 G:\CLERKS~1\HEARINGS\TRANSC~1\57520.TXT DARIEN
17 

tive things that we are gaining from it, lowering our carbon footprint, lowering emissions. 

So, I will really want us to be able to work together, and I am 

hoping that through this committee and the others with jurisdiction, that we can have some good dialogue with the EPA and, obviously, the input from the community. And I know that that is what 

you are waiting for. 

And for the record, it is kind of a housekeeping, for the record, 

someone will be staying from the EPA to listen to our next panel, 

because that is real important. That is one of the most important 

things to be able to listen. They are our constituents. They are our 

people. And so we want to make sure you can hear them well. 

Ms. FELDT. I appreciate it. Unfortunately, I personally can’t stay, 

as I have another meeting with the administrator, but I do have 

Amy Hayden, through our Office of Congressional and Intergovernmental Affairs; and Randy Deitz, who is our senior adviser to our 

office and the Office of Solid Waste and Emergency Response. They 

will be staying on to hear and welcome any input, both at this 

hearing and throughout the public comment process, on all aspects, 

including the impact to small business. 

We definitely want to hear and consider all those factors, as I indicated in my testimony. 

Chairman SHULER. I want to thank you for your time and your 

commitment to this. And I truly feel that there is a solution, that 

we can come to a great compromise and get this thing resolved and 

worked out in a way that everyone wins. And that is what we try 

to—not everyone can win always, but we try to. I think in this situation, we can all win on this. 

So thank you so much and thank you for your testimony. 

And at this time, we will have the second panel come forward. 

Ms. FELDT. Thank you so much. 

Chairman SHULER. I certainly want to thank the next panel, obviously, for your commitment to be here, but also for your industries and what you mean to small businesses throughout this country. 

Obviously, we have heard from the EPA, and now we get an opportunity to hear from you. Just one thing, let’s try to stay under 

that 5-minute mark. Read your testimonies as fast as you possibly 

can, because we are going to have votes in about 30 minutes, and 

that could last a long time. So we are going to try to get through 

this as quickly as we possibly can and ask questions as fast as we 

can as well. 

Chairman SHULER. So, without further ado, our next witness is 

Dr. Craig Benson. Dr. Benson is the co-director of the Recycled Materials Resource Center in the University of Wisconsin-Madison. 

The center serves as a research and outreach facility for the beneficial use of recycled materials. 

Mr. Benson you will be recognized for 5 minutes. 

STATEMENT OF CRAIG H. BENSON, PH.D., PE, DGE 

Mr. BENSON. Thank you, Mr. Chairman. 

I am glad to be invited here to provide my input and my experience to your committee. I want to make a few points from my testimony that I think are particularly important. 

18 

The first one is that the safe and wise beneficial use of coal combustion products is truly good for our environment. We create more 

durable and longer-lasting infrastructure. As a result, we don’t 

need to repair and replace things nearly as often. We really gain 

some significant benefits as a result. 

Just some calculations we have done, in terms of energy usage, 

savings on the order of 1.7 billion households of energy usage each 

year; 31 percent of the water use in California equivalent; equivalent greenhouse gas reduction of nearly 2 million cars. These are 

really substantial beneficial impacts or beneficial attributes that 

we get from using these materials in sustainable construction. 

And I would argue that, given the pressing energy and climate 

issues that we are talking about today, that we ought to walk carefully when we make decisions about how we might affect that. 

The second point I would like to make is that we have been looking at this issue for nearly two decades of whether these materials 

are hazardous. And the materials that we are looking at today really are not different than the ones we have considered in the past 

to be nonhazardous. There really hasn’t been a substantial change 

in those materials. There is really not a scientific reason to designate these materials as hazardous. 

The third point, and one of the issues of concern, is that the release of trace elements and other constituents from coal combustion 

products used in reuse applications—things like arsenic and cadmium were mentioned earlier—the thing that we need to realize is 

that all materials that we use in the environment release these 

things. And really what it gets down to is really safe and wise use 

of materials and engineering things properly so that we can manage those releases to the environment in a way that protects the 

public. 

We know when we use CCBs in a concrete like application that 

those releases are essentially negligible; that it is a very safe and 

wise use. Our history has shown that over time and time again. 

The fourth point, and I think this is a particularly important one, 

is that in the 20 years I have been working in this industry, interacting with people who use industrial byproducts in construction 

projects—people who actually put it into their infrastructure, who 

buy these products and assume responsibility for it being in the infrastructure. People like State highway departments, counties, public works directors, the people who buy that. And one of the key 

issues that we deal with in promoting the beneficial use of industrial byproducts is overcoming issues of perceived risk. People are 

concerned about the risk of using that product. And I would argue 

that the designation of these materials as a hazardous waste, even 

with an exemption for beneficial use, will have a very significant 

impact on that perceived risk and will result in a significant reduction in the use of these materials and construction. 

I would argue as well that it is not only these materials that will 

be affected by that, but all the industrial byproducts that we use 

will be affected adversely. One argument could be made if it is coal 

combustion products this year, what will it be next year? What is 

the use that I am going to be concerned about? That perceived risk 

is very real. The stigma associated with the hazardous waste desVerDate Aug 31 2005 20:20 Nov 12, 2010 Jkt 000000 PO 00000 Frm 00024 Fmt 6633 Sfmt 6633 G:\CLERKS~1\HEARINGS\TRANSC~1\57520.TXT DARIEN
19 

ignation is very real. And I consider that a major issue that we 

need to consider. 

I would argue as well that we actually know how to manage 

these materials in a very safe and wise way, both in the beneficial 

use application and in the disposal application. In my home State 

of Wisconsin, we have been doing this for 20 years. We don’t have 

environmental problems with our disposal facilities or with our 

reuse applications. Rules like we have in Wisconsin can be applied 

nationwide. They can be regulated at either the State or Federal 

level, and they can very effective. And I would argue that that type 

of example could be used to create some type of national rule or 

policy. 

So I will leave it at that point. Thank you. 

[The statement of Mr. Benson is included in the appendix.] 

Chairman SHULER. Thank you, Dr. Benson, for your testimony. 

Our next witness is Thomas Adams. 

Mr. Adams is executive director of the American Coal Ash Association located in Aurora, Colorado. The association is devoted to 

recycling materials created when coal is burned and generates electricity. 

Mr. Adams, you will be recognized for 5 minutes. 

STATEMENT OF THOMAS ADAMS 

Mr. ADAMS. Thank you, Mr. Chairman. 

We appreciate the opportunity to come speak to you and the subcommittee today about this environmental success story that is 

under some threat right now. 

Our association has a diversity of membership in very large utilities to very small businesses. Many of our members, a great number of them, are small businesses that include entrepreneurs that 

are bringing marketing and technical and contracting services to 

the market and also bringing innovation to the market that will increase the beneficial use of coal combustion products and expand 

them so that we are using more recycled materials and less virgin 

material contributing to sustainability. 

Our production and use survey is conducted annually. For the 

last survey in year 2008, we determined 136 million tons of CCP 

weregenerated, which is the second largest waste stream in the 

country. Of that 136 million tons, 44 percent, or 60 million tons, 

were recycled. Only 10 years ago, that recycling rate was 30 percent. So, in 10 years, we have increased our recycling almost 50 

percent, not in small measure, including support from the EPA 

under its Coal Combustion Products Partnership, C2P2. 

It is curious to hear EPA testify that they support recycling, yet 

they have taken this program, which has gone a long way to expanding recycling, and suspended it and pulled down its Web site. 

So if EPA does in fact support recycling, they shouldn’t be taking 

unilateral actions like that that deprive people of information on 

how to safely recycle. 

We want to keep to the time limits here and get right to the 

point. The stigma is real. We are seeing the effects in the marketplace of the shadow of regulation already starting to cause people 

to turn away from using these materials that are considered to be 

beneficial, even by EPA. 

20 

When we take a look at the marketplace and we see that consumers have a choice between using a material which may be considered hazardous for some reason or choosing another product 

which doesn’t have that stain or that stigma, the rational choice is 

to use the nonhazardous product. And that is where this stigma 

concern is coming from. 

So we know the stigma is real. The effects are not only from the 

use by specifying agencies, and you are going to hear from some 

of them very shortly, but also there are local governments and 

State governments that have prohibitions from using these materials beneficially if they are considered to be hazardous for any reason. Professional liability insurance may not be available for those 

designers who include these materials in their projects. And our 

small businesses are very concerned that venture capital is going 

to dry up, that the folks that provide that venture capital are not 

going to be willing to put their money into a product or a service 

that has a potential hazardous waste label stuck on it. 

In an effort to address these disposal problems, and we all know 

that there is a disposal problem, as indicated here in testimony 

today, the EPA has created a potential through that Subtitle C proposal to cripple, if not destroy, an industry that is heavily populated with small business which provide a substantial environmental and economic benefit to society. We do know that there is 

a better way, and we would like to suggest to you to the better way 

is for Congress to provide Subtitle D national enforcement authority to EPA. 

EPA itself has said publicly that Subtitle D rules are appropriate, and now we would like to see them have that tool so that 

we can get to that middle ground you talked about you talked 

about, Mr. Chairman, where we can compromise, protect human 

health, the environment and continue to promote recycling. Thank 

you. 

[The statement of Mr. Adams is included in the appendix.] 

Chairman SHULER. Thank you, Mr. Adams. 

Our next witness is Lisa Cooper, who is the senior vice president 

and general counsel of PMI Ash Technologies, headquartered in the 

great State of North Carolina, in Cary, North Carolina. 

You will be recognized for 5 minutes. 

STATEMENT OF LISA COOPER 

Ms. COOPER. Thank you, Chairman Shuler, Ranking Member 

Luetkemeyer and distinguished members of the committee. I sit before you as the owner of a small business, a small business who 

focuses entirely on coal ash recycling and concrete. 

Although we appreciate the lengths EPA has gone to in using the 

words ′′special waste′′ instead of ′′hazardous waste,′′ a Subtitle D 

option would be devastating to our small business and our competitors. EPA isn’t listening. Despite repeated attempts to educate 

them by standard setting organizations and us, Lisa Feldt just testified that she didn’t have enough information. 

I read to you from a prepublication letter from ASTM, dated December 22, 2009: A hazardous waste designation, even with an exclusion for beneficial use, would cause the ASTM standard for fly 

ash to be removed from project specifications, due to concerns over 

21 

legal exposure, product liability and public perception. This will 

likely result in little or no fly ash being used beneficially in concrete or other applications that support sustainable objectives. 

No one, Chairman Shuler, is going to put concrete in their son 

Johnny’s room with a hazardous waste in it. No one is going to 

want it in a hospital with their mother there. 

I met with EPA prior to the publication. I was honored to meet 

with them. They are not listening. 

Subtitle C won’t work. It will drive good-paying green jobs offshore, mine and my competitors and many other innovative small 

businesses. We won’t seize the opportunity to create thousands 

more green jobs, either, an opportunity for shovel-ready projects 

today. 

We are for increased regulation of coal ash under Subtitle D. We 

are for EPA having direct enforcement authority under Subtitle D. 

And I would note, I am just really saddened that EPA didn’t answer that question, whether they wanted Subtitle D authority. Because we actually asked them, why don’t you partner with us, so 

you have a level playing field, so you can adequately look at Subtitle D with direct enforcement authority as well as Subtitle C with 

direct enforcement authority. 

We need Congress to quickly pass a bill to give EPA direct enforcement authority. Jobs in our sector and deals are no longer out 

there. Everyone is in a wait-and-see mode. 

The NGOs say there is a line in the sand. They won’t talk with 

us because they want Subtitle C for disposal. They are willing to 

sacrifice our small business recycling industry to get Subtitle C. 

There is a lack of trust. We are caught in the middle, no one willing to listen. Our small businesses and our employees will not be 

able to survive these typical struggles in D.C. 

You need to break this logjam. Please work on a bill that provides Subtitle D regulations for coal ash but also provides direct 

enforcement authority, similar to municipal solid waste. This will 

create good-paying jobs. 

We create 180 temporary jobs in building our types of capital-intensive facilities and 44 permanent jobs. Our technology requires 

regulatory certainty. They are long-term deals. We don’t even use 

venture banks; we use real banks. Banks, utilities, ash marketers, 

ready-mixed customers, all need to know that fly ash recycling and 

concrete is and will be okay and won’t be stigmatized by a hazardous waste designation. 

CO2 savings are real. We are one of the few companies that have 

certified and verified CO2 credits, not through a voluntary scheme, 

but through the State of Massachusetts. It is very unfair for me as 

a small business sitting here hearing that EPA counted the CO2 

benefits that our industry works for but didn’t count the cost to us. 

Don’t let regulatory overreaching get this wrong. Small businesses 

such as ours need you to stand up for us and take a stance. Thank 

you. 

[The statement of Ms. Cooper is included in the appendix.] 

Chairman SHULER. Thank you Ms. Cooper. 

Our next witness is Mr. Richard Stehly. Mr. Stehly is a principal 

of American Engineering Testing Incorporation, located in St. Paul, 

Minnesota. And American Engineering Testing is an employeeVerDate Aug 31 2005 20:20 Nov 12, 2010 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6633 G:\CLERKS~1\HEARINGS\TRANSC~1\57520.TXT DARIEN
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owned corporation providing geotechnology and environmental consulting and testing services. 

Mr. Stehly, you will be recognized for 5 minutes. 

STATEMENT OF RICHARD STEHLY, PE 

Mr. STEHLY. Thank you, Mr. Chairman, and distinguished members of the subcommittee. Thank you for taking up this issue. I believe it is very, very important. And thank you for inviting me to 

give testimony. 

As you noted, I am a principal and founder of American Engineering Testing. In December 1989, it was a small business; it was 

14 people. But we have had success, and it has grown to about 250 

people. 

I am also an active member in the American Concrete Institute, 

and I am its president this year. The institute is 106 years old, and 

it is the world’s knowledge center on concrete. We have 20,000 

members, many of them small businesses, designers, ready mixed 

suppliers, material suppliers, laboratories. They are all interested 

in this issue. We have more than 100 chapters, a third of them outside the U.S. 

For a standards developing organization, we are probably best 

known for our document the committee 318 generates. This is the 

Building Code Requirements For Structural Concrete. That code is 

then adopted by the International Code Council in the International Building Code. States then adopt the code as their building code. These are the minimums that are required for building 

structures with concrete. 

Code is translated into Spanish as an official version. It is used 

throughout Central America and South America. It is also translated into Arabic, Chinese. The Iranians translate it into Farsi. It 

is Korean and Portuguese. It is used worldwide. I visited Vietnam 

in April. We are about to sign a memorandum of understanding 

with Vietnam that will allow them to use the code for their structural concrete code. 

The code contains references to using fly ash in making concrete. 

Concrete is very useful in making—fly ash is very useful in making 

concrete. It makes it stronger and last longer. It can make it easier 

to place and reduces cost. 

Portland cement is the primary binder in concrete. It is energy 

intensive to make; about 5 million BTU to make a ton. It releases 

about a ton of CO2 when you make it. 

When we use fly ash there is pretty much a direct substitution. 

You use a ton of fly ash; you use a ton less of cement. Now, you 

will remember in December, in Denmark, at the UN Climate Summit, the President made a pledge to reduce CO2 emissions, 2020, 

17 percent over 2005 emission level. Currently the industry is 

about 40 percent below that target. It is because of the reduction 

in volume because of the economy. But going forward, construction 

will recover, and by using fly ash, we could stay under that target 

every year, including 2020. 

I provided you information from the U.S. Geologic Survey on cement use. They have been keeping information since about 1900. 

If you look, cement use peaked in 2005 at about 128 million tons. 

We produced about 100. We imported about 30. Currently, we are 

23 

40 percent under that peak, but as it recovers, as the economy recovers, construction recovers, it will grow. You can reduce the need 

to import cement by using fly ash. 

Lastly, there are no technical barriers to using more fly ash in 

concrete. The knowledge is there. It is in our documents. Fly ash 

is discussed in more than 100 of our technical documents. 

The barrier is acceptance. I have included in my written testimony an article by Nadine Post from the Engineering-News 

Record. Now, she had the courage to write in April what is on a 

concrete users’ minds. She wants to know, is fly ash the next asbestos? 

I have seen no reply from the EPA. Managing supply ash’s image 

is key to increasing acceptance. Now, as we know, EPA is considering a Subtitle C type of designation for its regulation. We think, 

if that should happen, use will decline. The many different audiences that have to assent to its use will consider it, and they will 

choose not to use it. These will be the generators. These would be 

the ready-mixed suppliers. These would be the engineers of record 

for the buildings. These would be the contractors. They will look at 

it, and they will turn away. 

Lastly, we are going to survey our industry. We are going to determine the impact of stigma. We will have those results available. 

We will provide them to EPA. We will provide them to you if you 

wish and OMB. Thank you. 

[The statement of Mr. Stehly is included in the appendix.] 

Chairman SHULER. Thank you, Mr. Stehly. 

Our next witness is William Gehrmann. Mr. Gehrmann is the 

president of Headwaters Resources Incorporated in South Jordan, 

Utah. Headwaters Resources is a marketer of coal ash combustion 

products. 

Mr. Gehrmann, you will be recognized for 5 minutes. 

STATEMENT OF WILLIAM H. GEHRMANN 

Mr. GEHRMANN. Thank you, Mr. Chairman, honorable members 

of the committee. 

Our company is the Nation’s largest marketer of coal combustion 

byproducts in the country, with operations on over 100 power plant 

sites. 

As a manager and marketer of coal ash, Headwaters touches 

every link in this chain of activity that makes beneficial use of the 

material possible. Small businesses comprise a significant portion 

of many of the links in this chain. 

As other witnesses at this hearing will testify, using coal ash instead of disposing it creates significant benefits for the environment and users of the material. The environment benefits by conserving natural resources and constructing fewer landfills. Use of 

coal ash to replace cement also results in millions of tons of greenhouse gas emission reduction. 

Coal ash users benefit by being able to make products that are 

stronger and more durable than products made without coal ash. 

Coal ash also has properties that help engineers solve specific problems, such as the presence of reactive aggregates in concrete. 

But just because the benefits of using coal ash are great does not 

mean it is easy to get people to use it. Significant investments 

24 

must be made to be able to transport and deliver materials to users 

so that it is available when they need it. Users must be educated 

on how to properly use the materials, the benefits of the materials, 

and how to properly handle them. 

Additionally, it is important to remember that coal ash users 

have alternatives to using coal ash and can choose to eliminate its 

use. 

In my written testimony, I describe several levels of the coal ash 

beneficial use industry and explain how each level must respond to 

a hazardous-when-disposed designation for coal ash. These levels 

include ash producers; utilities that generate it; ash marketers, like 

Headwaters; ash technology developers and providers, like PMI 

Ash Technologies; product specifiers; ash users; and end users. All 

these parties will find it more difficult to use coal ash if it is designated hazardous for disposal. 

If any of these levels decided that using coal ash was a bad idea, 

then the beneficial use of coal ash would significantly decrease. As 

I describe in my written testimony, all of these levels would face 

major challenges if coal ash were designated as a hazardous waste 

for disposal. 

Some of the participants in the coal ash chain will worry about 

their health and safety if coal ash is labeled hazardous. Other participants will worry about being sued by people who are worried 

about their health and safety if coal ash is labeled hazardous. Most 

participants will have to deal with a host of unanswered questions 

relating to how they will have to change their handling of the material if coal ash is labeled hazardous. 

The damage from this proposal is already being felt. In proposing 

a hazardous-when-disposed regulatory framework for coal ash, the 

U.S. EPA has already created a new barrier to increasing the beneficial use of coal ash. End users exposed to a barrage of negative 

news articles about coal ash have already begun calling our concrete producer customers asking if the concrete they are using contains a dangerous material. 

Some product specifiers, such as the Los Angeles Unified School 

District, have already removed coal ash from their concrete specifications as a direct result of the EPA’s proposal. 

We are seeing an increase in requests to amend indemnification 

language in supply and purchase agreements, pushing any potential liabilities and risks all the way down the coal ash supply chain. 

Many small businesses along the supply chain will be forced to 

make difficult decisions regarding the continued use of coal ash in 

their products. Many of these businesses were built around the 

beneficial use of coal ash. 

In meetings with me and other representatives of the coal ash industry, EPA officials have indicated they support the beneficial use 

of ash, but actions speak louder than words. And EPA has done 

precious little to demonstrate support for legitimate coal ash use. 

To the contrary, EPAhas unilaterally and without explanation removed its Coal Combustion Products Partnership information from 

its Web site. End users seeking information from the EPA about 

coal ash are now greeted with a single statement that Coal Combustion Products Partnership program Web pages have been removed while the program is being reevaluated. 

25 

The irony of this is also unnecessary. The actual engineering 

standards for disposal facilities are essentially the same under the 

EPA’s two proposals. The EPA’s hazardous proposal appears calculated primarily to get Federal enforcement authority over the 

regulatory program. EPA appears to be willing to sacrifice a substantial and beneficial industry merely to obtain greater regulatory 

influence. 

EPA should do what is right for the environment, not what is 

best for the EPA’s authority. The best course of action for our Nation’s environment is one that encourages safe and beneficial coal 

ash used as a preferred alternative to disposal. Whatever material 

remains unused can then be disposed in a safe and effective manner. 

The hazardous-when-disposed approach proposed by the EPA 

will have exactly the opposite effect, reducing coal ash use activities and therefore creating more waste that will be landfilled. 

Thank you for the invitation to testify and for your interest in 

this important topic. 

[The statement of Mr. Gehrmann is included in the appendix.] 

Chairman SHULER. Thank you, Mr. Gehrmann. 

Our next witness is Robert Garbini. Mr. Garbini is the president 

of the National Ready Mixed Concrete Association. 

You will be recognized for 5 minutes. 

STATEMENT OF ROBERT GARBINI, PE 

Mr. GARBINI. Thank you, Chairman Shuler, Ranking Member, 

Mr. Bright and Mrs. Dahlkemper, thank you for the invitation to 

testify on behalf of the National Ready Mixed Concrete Association. 

As a matter of scale, ready-mixed concrete consumes 75 percent 

of all the portland cement used in this country. We also represent 

1,500 concrete manufacturers in 50 of the State-affiliated organizations. Approximately 85 percent of NRMC’smembers are small 

businesses. 

Concrete is the most widely used construction material in the 

world. It is produced and consumed in every part of this country. 

In fact, no construction takes place without some kind of concrete 

products in it. 

. Based on NRMC’s latest industry data survey, we estimate the 

U.S. ready-mixed concrete industry exceeded $25 billion in 2009, 

with over 130,000 people directly deriving their livelihood from the 

industry. 

With regard to the proposed rule, the ready-mixed concrete industry is the largest user, beneficial user, of fly ash. In 2008 alone, 

which was a down year, the industry used 15.8 million tons of fly 

ash in the manufacturing of ready-mixed concrete, making fly ash 

by far the most widely used supplemental cementitious material. A 

1998 survey of ready-mixed concrete producers showed that over 55 

percent of all the ready-mixed concrete contained fly ash at an average of 20 percent by weight of total cementitious materials. It is 

probably higher at this point, certainly higher. 

Fly ash is used in combination with portland cement to impart 

beneficial qualities to concrete. The environmental benefits of using 

industrial byproducts in concrete results in longer-lasting structures and reductions in waste materials sent to landfills, raw mateVerDate Aug 31 2005 20:20 Nov 12, 2010 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6633 G:\CLERKS~1\HEARINGS\TRANSC~1\57520.TXT DARIEN
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rials extracted, energy required for production and air emissions, 

including CO2. 

There are also economic benefits using fly ash in concrete. Fly 

ash is significantly less expensive than portland cement and, therefore, reduces the material cost of concrete while providing enhanced benefits and performance. 

Also, the concrete industry, while it uses significant fly ash, it is 

estimated that there still remains about 42 million tons of fly ash 

that our landfilled annually. Although not all fly ash is of significant quality for use in concrete, it is still estimated that the concrete industry could increase its current use to above 30 million 

tons per year by 2020, which would reduce the concrete industry’s 

carbon footprint by 20 percent. 

Based on the ready-mixed concrete industry’s extensive use of 

and reliance on fly ash in concrete and after examining EPA’s proposed rule, we have determined that the RCRA Subtitle C as a 

hazardous designation for fly ash will lead to these following unintended consequences for small businesses in our industry: Number 

one, an increase in production costs; number two, an increase in 

the liability for concrete producers, as you have heard also from 

some of the previous speakers; number three, the stigma for the 

use of fly ash in concrete; the potential elimination of fly ash in 

concrete and a dramatic impact on the Nation’s infrastructure. 

I would also add that we are still evaluating whether or not we 

would even want to see the designation of EPA’s control under a 

Subtitle D. We are still not quite—we intend to do a survey, which 

we should have back in the next 3 months. We have asked EPA 

for a 120-day extension. We are waiting for the response back from 

that. 

Mr. Chairman, members of the subcommittee, thank you for 

hearing my concerns. 

[The statement of Mr. Garbini is included in the appendix.] 

Chairman SHULER. Thank you, Mr. Garbini. 

I appreciate your testimony. 

I would like to yield to the ranking member, Mr. Luetkemeyer, 

for introduction of our next witness. 

Mr. LUETKEMEYER. Thank you, Mr. Chairman. 

Mr. Bross is an owner of Chester Bross Construction Company 

and president of Mark Twain Redi-Mix in Hannibal, Missouri. 

Chester Bross Construction Company, founded in 1966, is an 

award-winning general contractor in the construction industry. 

From driveways to highways, Mr. Bross’s company performs a wide 

variety of construction activities throughout the Midwest. Mark 

Twain Ready Mixed manufactures and delivers ready-mixed concrete and related products to commercial, residential and public 

projects. 

Jeff is president of the Missouri Asphalt Pavement Association 

and vice chairman of the Missouri/Kansas Chapter of the American 

Concrete Pavement Association. 

Jeff, thanks for being here today, and the committee looks forward to your testimony. 

27 

STATEMENT OF JEFFREY BROSS 

Mr. BROSS. Thank you for having me. Good morning. Most of my 

points have been touched on at length here. 

Chairman SHULER. Pull your microphone a little closer, please, 

sir. 

Mr. BROSS. Can you hear me now? Okay. 

Like I said, most of my points have already been touched on, so 

there is no reason to dwell on them. 

We do ready-mixed and highway paving all over the Midwest. 

And our biggest concern is that we are taking a product that has 

taken years to get acceptability in the specifying industry and the 

contracting industry to where it—and it also improves the quality 

of the ready-mixed concrete in almost all cases. I don’t know if that 

has been mentioned or not. And it has also been specified now as 

a requirement in certain projects for the benefits it provides to the 

material. 

It also, as far as a hazardous situation, that has been expounded 

on, it obviously isn’t when used in concrete. And to tie it to this 

Subchapter C is going to propose a liability that we are fairly certain we are not going to be able to sustain as far as insurance and 

bonding and things of that nature if we continue to use fly ash, because the way we understand it, the responsibility or liability is 

going to fall to us if it is declared hazardous and then lawsuits 

come out and all that down the line. 

So I guess my quick, simple point is you have got a product that 

makes concrete better. Every time you put it in the concrete, you 

are using less portland cement, which means less carbon footprint 

going out the stacks of the cement plants and the kilns. 

If you don’t use the fly ash because of all this liability, you are 

going to have that much more to get rid of somewhere. That is 

being handled very well right now on a good quality-control basis. 

And I just I am kind of a commonsense guy. It just looks like we 

are here to—I don’t even understand why we are talking about 

this. That is really all I got. 

[The statement of Mr. Bross is included in the appendix.] 

Chairman SHULER. That happens a lot here in Washington. 

But you have a panel—you know, as a panel you are certainly— 

your input and expertise really helps us make much better decisions in the things that we are able to do. 

And, you know, even within this panel, I can even hear differences of opinion, and that makes it even more difficult to come 

to some agreement on. And we are going to try to get through as 

many questions as we possibly can, that way you can go on about 

your business. 

Dr. Benson, the State of Wisconsin has stronger regulations for 

disposal on the reuse of coal ash than most States do, but yet you 

double the national average. So what are you doing within Wisconsin that has tough regulations but actually doubles the national? Average, what are you doing? How are you able to educate? 

I know, Mr. Garbini, we are talking about leaving it to the States 

because, I mean, heaven forbid, if one State says it is a hazardous 

waste, then that knocks everybody out. And so we got to find some 

uniformity. 

28 

And I know Mr. Adams, in his testimony, and we are on the 

same page talking about giving them the regulation under D; that 

way we can have uniformity. Because one State—I mean, I don’t 

know which State, maybe the Pacific Coast side, if they want to decide it is a hazardous waste, then ultimately, we end up that it impacts everyone in the industry. And we talk about insurance, liability, litigation. 

So what are you doing in Wisconsin that increases, doubles the 

amount of use but also have somewhat good regulations? 

Mr. BENSON. Well, I would indicate that we actually do two 

things. We have a disposal regulation that mimics Subtitle D. And 

that provides us with a vehicle when we need to dispose of these 

materials that is safe and protective of the environment. It has 

been very effective. We actually at our modern disposal facilities 

haven’t had a single environmental compliance issue with regard 

to groundwater in those modern facilities. So we have a code that 

is like Subtitle D, that provides safe containment of these materials. 

The other thing that we have is we have vehicles in our regulation that allow us to use these materials. We recognize their value. 

We recognize the importance of using our resources wisely. And we 

developed a code, in collaboration with industry stakeholders, environmental stakeholders, and regulators, that allows us to use these 

materials in a very safe and wise manner that is both protective 

of the environment but also allows them to be used in construction. 

So through those two vehicles, we have been very successful in 

increasing the use of coal combustion products and other industrial 

byproducts, while also ensuring that we protect the environment in 

disposal applications. 

Chairman SHULER. I am going to recognize Mr. Luetkemeyer for 

his questions. 

Mr. LUETKEMEYER. Thank you, Mr. Chairman. 

Mr. Bross, during your testimony, you indicated that it improves 

the quality. Could you give me examples of how it improves the 

quality of the concrete? 

Mr. BROSS. Well, some of these guys here are probably much 

more qualified technically. 

Mr. LUETKEMEYER. I want real-world experience. 

Mr. BROSS. When you use fly ash, in most instances, you get a 

higher strength material, and it is also more durable. You can use 

less cementitious material, which is going to affect your shrinkage 

and curling of your concrete. In like a large flat board pour, that 

makes a big difference in how much the concrete shrinks and curls, 

and things like that. It is hard on the—a lot of things. These guys 

can tell you. 

And then there is also a silica reactivity, which I am not all that 

technical on. I just know that using fly ash in the concrete helps 

offset this alkali silica reactive—it is the aggregates, right, that 

cause it? And if you take it away, you have got this ASR problem 

down the road, where the concrete deteriorates. And they had a 

huge problem with it in Pennsylvania, I know, and in Texas, a lot 

of places around the country. 

Mr. LUETKEMEYER. Whenever you are working with it and you 

are handling it and you are putting it into your mix, what are the 

29 

things that you do to protect your people and the environment 

around that? I am sure there are some sort of controls on that. 

Would you just elaborate just for a second? 

Mr. BROSS. It is all controlled. It is air tight, basically. You have 

hoses hooked up to your truck before you open any valves. You 

open the valves. You put pressure to the tank, and you blow it up 

into a silo or a storage vessel. And that is vented into a pollution 

control device, a bag house, that is 99.99 percent efficient at trapping it, and none of it—essentially none escapes. 

Mr. LUETKEMEYER. So, basically, handling is not a problem either? 

Mr. BROSS. No, sir. 

Mr. LUETKEMEYER. And it has never been—the scientific stuff 

here is—let me just wrap up my thoughts here. 

The EPA folks are still here, and I think you have heard the testimony of the folks in the real world who deal with this every day. 

And we don’t have any sound science that says this is a bad product. 

During the testimony, EPA mentioned or agreed that it is an impoundment problem. I think that is where we need to focus. 

I do have a concern about, Mr. Benson, and I think Mr. 

Gehrmann mentioned, that the EPA has pulled from the Web site 

information on recycling of this, is that correct? I would certainly 

like to know why EPA pulled that from their Web site when there 

has been no definitive ruling about this. I think it is very important. We are talking about recycling something here that I think 

is important to the environment. It is important to the industry 

and a lot of folks here. 

So I would certainly appreciate that, Mr. Chairman. With that, 

I would yield back. 

Chairman SHULER. Thank you. 

Sir, I couldn’t agree more with you from the standpoint I can’t 

understand why they took that from the Web site. Let’s hope that 

it is just a technical glitch, and it will be up next week. We are 

hoping that will be the case. 

Ms. Cooper, you are the small business. I mean you exemplify everything about small business. How many employees do you have? 

Ms. COOPER. Twenty-one. 

Chairman SHULER. Twenty-one, a small business, that is perfect. 

Tell me about the stigma. What is happening now? Tell me about 

the stigma that is happening in the industry now, but then what 

will be the bottom line if it is designated under Subtitle C? 

Ms. COOPER. We see no deals. Everybody is in a wait-and-see 

mode. The EPA’s actions, and we told them this prior to the rule 

coming out, have people laying off. There are fly ash marketers 

that are laying off. We have been able to retain our employees. 

The markets get even more jittery when EPA does things that 

demonstrate they don’t understand the markets, like taking down 

the Web site and suspending their support for the program without 

talking to partner agencies. If they would have talked to us ahead 

of time, we could have warned people. 

But if there are beneficial-use deals that are in the mix, no one 

is going to take those deals seeing EPA do these type of things. 

30 

The industries that they are basing their assumption, that if it 

is a hazardous waste exemption, it is going to increase, are very 

different than ours. The chain of title is very different. And there 

are not as many small businesses in there that will not be able to 

withstand indemnifications and other things. 

If it does go to a Subtitle C, I fully expect that ASTM and the 

gentleman next to me, who is with ACI in a volunteer capacity, will 

be telling people, you know, it is a hazardous waste in other settings. And you will have consumers, like in Missouri, if you look 

at the Corps of Engineers recently held a hearing, and numbers of 

people came out and even with a binder in there, they said we 

don’t want fly ash in there because it is toxic. I expect that our industry will not survive, and it will not be able to be built back. You 

hear, by people who have more gray hair and not as good hair 

dressers as mine, that it has taken years to get to this point, and 

we won’t be able to go back and resurrect it. 

Chairman SHULER. Thank you, Ms. Cooper. 

I appreciate everyone’s testimony today. 

I think that the EPA has listened today. I think that here is an 

opportunity for an entire panel. And I think there is an opportunity 

for us, whether it be through legislation, as the ranking member 

and I have been talking about. We have worked with some of you 

already on the legislation, and working with EPA. 

Now, at this point in time, we have started the fight together; 

crossing the aisle, we have done that together. Now it is, how can 

we work together? And now has to be, how can we work with the 

EPA? How can we do this in order to make sure that we are all 

on the same page, that we can save the jobs, that we can protect 

the environment, we can lower our emissions footprint? 

So now is the time for us to work together. And moving forward, 

there has to be a way that we can come to common ground, unite 

together under the fact that we want to do what is right for the 

environment, we want to do what is right for human health, but 

we also want to do what is right for our businesses as well and ensure that the small businesses have a voice. Your voice has been 

heard today. 

And I would like to thank the ranking member and my colleagues. 

And obviously, as you see, we have 5 minutes to go vote. 

I ask for unanimous consent that the record be open for 5 days 

for members to submit their statements. 

Hearing no objection, so ordered. 

This hearing is adjourned. 

[Whereupon, at 11:45 a.m., the subcommittee was adjourned.] 

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Æ