UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

OFFICE OF RESOURCE CONSERVATION AND RECOVERY

OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE

PUBLIC HEARING ON EP A'S PROPOSED RULE ON

Hazardous and Solid Waste Management System;

Identification and Listing of Special Wastes;

Disposal of Coal Combustion Residuals from

Electric Utilities

DOCKET ID NO. EPA

- HQ

- RCRA

- 2009

- 0640

Arlington, Virginia

Monday, August 30, 20102

1 PARTICIPANTS:

2 EPA Hearing Panel:

3 Morning Session:

4 ROBERT DELLINGER, Chair

Director of Materials Recovery and Waste

5 Management

Office of Resource Conservation and Recovery

6

LAURA CELESTE

7

JESSE MILLER

8

STEVE SOUDERS

9

Afternoon Session:

10

BETSY DEVLIN, Chair

11 Associate Director of Materials Recovery and Waste

Management

12 Office of Resource Conservation and Recovery

13 ALEXANDER LIVNAT

14 CRAIG DUFFICY

15 ROB STACHOWIAK

16 Evening Session:

17 ROBERT DELLINGER, Chair

Director of Materials Recovery and Waste

18 Management

Office of Resource Conservation and Recovery

19

LAURA CELESTE

20

JESSE MILLER

21

STEVE HOFFMAN

223

1 PARTICIPANTS ( CONT'D):

2 Public Attendees:

3 FRANK ACKERMAN

Economist Tuffs University

4

MIKE ADAMS

5 Headwaters Resources

6 THOMAS ADAMS

Executi ve Director American Coal Ash Association

7 Aurora, Colorado

8 CYNTHIA ANDELA

President Andela Products

9

JASMINE ANDREWS

10 Student Hampton University

11 JEANETTE DAY ANDREWS

Resident Chesapeake, Virginia

12

DONALD ANGER

13 Operations Manager Americast, Incorporated

President Precast Concrete Association of Virginia

14

DOUG AUS

15 Resident Maryland

16 DREW BALL

Political Project Representative Sierra Club

17

JONATHAN BARKER

18 Licensed Professional Engineer

19

MICHAEL BECK

20 Sales and Marketing Synthetic Materials LLC

21 COLIN BENNETT

22 GLEN BESA

Director Sierra Club, Virginia Chapter4

1 PARTICIPANTS (CONT'D):

2 BONNIE BICK

Resident Maryland

3

JESSIE THOMAS BLAKE

4 Resident Fairfax, Virginia

5 JOHN BORDERS

President Separation Technologies Business Unit

6 Titan America

7 DAVE BRINKLEY

Director of Distribution Roanoke Cement

8

CHRIS BROGUN

9 Emp loyee Unidentified Coal Ash Company

10 BOB BROWN

11 MARK BRYANT

Mission Control Commodities Ameren Energy Fuels

12 and Services

13 JOHN BUCHANAN

Resident Arlington , Virginia

14

BRUCE BURTON

15 International Representative International

Brotherhood of Electrical Workers

16

GARY CARRER

17 Resident King George County, Vir ginia

18 TOM CERULLO

Separation Technologies

19

SARA CHIEFFO

20 Deputy Legislative Director League of Conservation

Voters

21

ALLISON CHIN

22 Cancer Biologist Volunteer Member, Board of

Directors Sierra Club5

1 PARTICIPANTS (CONT'D):

2 AUDREY CLEMENT

Co

- chair Green Party of Virginia

3

THOMAS COLLINS

4 Separation Technologies

5 JOE CROCE

Senior Vice President and Environmental Manager

6 Virginia Manuf acturers Association

7 BILL CUNNINGHAM

Unions for Jobs in the Environment

8

JOHN CURLE

9 Resident Fairfax, Virginia

10 VERNON DAVIS

11 ROGER DIEDRICH

Resident Fairfax, Virginia

12

KARA DOBSON

13 Student and Campus Organizer Virginia Tech

14 BRIAN DULANEY

Separation Technologies

15

RANDY D UNLAP

16 President Separation Technologies and Essex Cement

17 MATT DURNING

Independent Documentary Filmmaker

18 Perry County

19 LORI EHRLICH

State Representative 8 th Essex District,

20 Massachusetts

21 PHILLIP ELLIS

Sustainable Metro D.C. Campaign Sierra Club

226

1 PAR TICIPANTS (CONT'D):

2 EMILY ENDERLE

Legislative Representative Earthjustice

3

LISA EVANS

4 Senior Administrative Counsel Earthjustice

5 CECILIA FABULA

Anne Arundel County Council for the Environment

6 Chairperson Brooklyn Park Advisory Council

7 GRETA FAGAN

Resident Chesapeake, Virginia

8

PAM FAGGERT

9 Vice Pre sident and Chief Environmental Officer

Dominion Resources Utility Solid Waste Activities

10 Group

11 HENRY FAIR

Artist

12

KATIE FEENEY

13 Project Direct or Clean Air Council

14 LESLIE FIELDS

Director Environmental Justice and Community

15 Partnerships Sierra Club

RICHARD FORTUNA

16

MARY FOX

17 Assistant Professor Department of Health Policy

and Management Johns Hopkins Bloomberg School of

18 Public Health

19 STEPHEN FOX

Resident Chesapeake, Virginia

20

BRADFORD FRIS BY

21 Associate General Counsel National Mining

Association

227

1 PARTICIPANTS (CONT'D):

2 BILL GEHRMANN

Headwaters Resources

3

VICTOR GOLDBERG

4

NICK GOLDSTEIN

5 Assistant General Counsel American Road and

Transportation Builders Association

6

BARBARA GOTTLIEB

7 Deputy Director Environment and Health Program

Physicians for Social Responsibility

8

LISA GRAVES

- MARCUCCI

9 Environmental Integrity Project

10 DANNY GRAY

Executive Vice President Charah, Incorporated

11

MICHAEL GREENBERG

12

EMILY GREENLEE

13 Earthjustice

14 LAWRENCE CHRISTIE HAGER

Resident Falls Church, Virginia

15

LOLA HAND

16 Anne Arundel County Council for the Environment

17 MARGARET HOERATH

Sierra Student Coalition Sierra Club

18

CINDY HOFFMAN

19 Fellow American College of Medical Practice

Executives

20

EDWARD HOUSEKNECHT, JR.

21 Operations Manager Separation Technologies

22 JOHN HO WLEY

Editor Maryland Energy Report8

1 PARTICIPANTS (CONT'D):

2 JASON HUEY

Separation Technologies

3

ULBER ISA

4 Operations Manager Essex Cement

5 LISA M. JACKSON

Owner of Small Business

6

MICHAEL JACKSON

7 District Attorney 4th Circuit in Alabama

8 BRIAN JOHNSON

Greenpeace

9

GEFEN KABIK

10

SCOTT KAVAROVICS

11 Conservation Director Izaak Walton League of

America

12

HANK KEIPER

13 Licensed Engineer SEFA Group

14 REBECCA KOLBERG

Resident Pasadena, Maryland

15

LUCIAN LAURIE

16 Homeowner and Resident King George, Virginia

17 DAVE LEVY

Resident Alexandria, Virginia

18

ALAN LOCKWOOD

19 Professor of Neurology University at Buffalo

20 LILLY LYNDSEY

Member Hampton Road Community

21

BILL LYONS

22 Executive Director Concrete Industry Board of New

York9

1 PARTICIPANTS (CONT'D):

2 IVY MAIN

McLean, Virginia

3

ROY MASON

4 Attorney Mason & Kaywood

5 FRANKIE MASTIN

Operational Supervisor Headwaters Resources

6

NORRIS MCDONALD

7 Center for Environment Commerce and Energy

8 JAMES MCGRATH

Resident Giles County

9

JEFF MCNELLY

10 Executive Director ARIPPA

11 P AUL MELLON

President Novetas Solutions

12

EMILY MILES

13 Student George Mason University

14 JESSICA MILLER

15 LYNDSAY MOSELEY

Federal Policy Representa tive Sierra Club

16

SUSAN MOSS

17 Resident Surry County, Virginia

18 JAMIE NOLAN

Communications Director Chesapeake Climate Action

19 Network

20 BETH NORC ROSS

Minister and Adjunct Professor Wessley Theological

21 Seminary

22 JOELLE NOVEY

Greater Washington Interfaith Power and Light10

1 PARTICIPANTS (CONT'D):

2 KARTHIK OBLA

Vice President Technical Service National

3 Ready

- Mix Concrete Association

4 DON OLIVO

Essex Cement Co mpany

5

ALICIA OMAN

6 Director, Energy and Resources Policy National

Association of Manufacturers

7

REVEREND JANET PARKER

8 Parish Life Rock Spring Congr egational United

Church of Christ

9

BRYCE PAYNE

10 Resident Pennsylvania

11 BILL PETTY

Environmental Defense Fund

12

ERIC PICA

1 3 President Friends of the Earth, United States

14 ANA PRADOS

Research Assistant Professor University of

15 Maryland Baltimore County

16 TOM QUINN

Resident Washington, D.C.

17

BOYD RAMSEY

18 GSC Lining Technology LLC Geosynthetic Materials

Association

19

BARBARA REED

20 Resident Greene Township, Pennsylvania

21 BIL L RICHARDSON

Co

- Founder and Managing Partner Precision

22 Recycling Industries of Virginia11

1 PARTICIPANTS (CONT'D):

2 JOHN RISCH

United Transportation Union

3

JOHN ROBERTSON

4 Attorney Giles County

5 JIM ROHRBACH

Licensed Professional Engineer Delaware

6

MARY RUSSO

7 Spokesperson Anne Arundel County Council for the

Environment

8

RYAN SALMON

9 Coordinator, Climate and Energy Policy National

Wildlife Federation

10

RUTH SANTIAGO

11 Attorney Salinas, Puerto Rico

12 AMY SCHAFFER

American Forest and Paper Association

13

JOHN SCOGGAN

14 Boral Material Tech nologies

15 DENNIS SEARS

Resident Chesapeake, Virginia

16

ROBERT SELLS

17 Titan America

18 ERIC SHAFFER

Director Environmental Integrity Projects

19

CRAIG SHAMORY

20 Environmental Manager PPL Corporation

21

2212

1 PARTICIPANTS (CONT'D):

2 TOM SHAW

Director of Sales Harsco Minerals Division Harsco

3 Corporation

4 BETSY SHEPARD

Resident Surry County, Virginia

5

JACK SHURMAN

6 Owner Shurman Trucking Company

7 SCOTT SLESINGER

Legislative Director Natural Resources Defense

8 Council

9 DAVID SMITH

Director Environmental Health and Safety Services

1 0 Old Dominion Electric Cooperative

11 JENNIFER SORFF

12 JEFF STANT

Director Coal Combustion Waste Initiative

13 Environmental Integrity Project

14 JEFFERY STEERS

Director Waste Division Virginia Department of

15 Environmental Quality

16 RENA STEINZOR

Law Professor University of Maryland School of Law

17 President Center for Progressive Reform

18 TIM STEVENS

Environmental Services Council

19 Falls Church, Virginia Assistant Treasurer Sierra

Club, Virginia State Chapter

20

JAMES STINE

21 Senior Princip al for Environmental Policy National

Rural Electric Cooperative Association

2213

1 PARTICIPANTS (CONT'D):

2 STEPHEN SWAR TZ

Co

- Owner New Age Faceting Systems

3

SAM THERNSTROM

4 Senior Climate Policy Advisor

Clean Air Task Force

5

STEVE THOMAS

6 Resident Pen nsylvania

7 JOHN THORINGTON

Senior Director Communications and Board

8 Coordination Tampa Port Authority

9 SEAN TODD

Coal Boilers Slag Consortium

10

CHAD TOLMAN

11 Energy Chair, Delaware Chapter Sierra Club

12 VERNICE MILLER TRAVIS

Vice Chair Maryland Commission on Environmental

13 Justice and Sustainable Communities Member EPA

National Environmental Justice Advisory Council

14

STEVE TUTTLE

15 Resident Alexandria, Virginia

16 ROBERT E. TYE

Resident Chesapeake, Virginia

17

JASON VAN KUDRO

18 Student George Mason University

19 MARISSA VERTREES

Social Justice Director St. Charles Borromeo

20 Catholic Church Arlington, Virginia

21 JOHN WARD

Ch airman Citizens for Recycling First

2214

1 PARTICIPANTS (CONT'D):

2 JOHN WATHEN

Hurricane Creekkeeper Waterkeeper Allian ce

3 Chairman of the Board of Directors Citizens Coal

Council

4

ALANA WASE

5 Maryland Sierra Club

6 THOMAS WHITLEY

National Capital Presbytery

7

LISA WIDOWSKY

8 Attorney Environmental Integrity Project

9 NATHAN WILCOX

Federal Global Warming Program Director

10 Environment America

11 BARBARA WILLIAM SON

General Secretary, Social and Environmental

12 Justice Earthcare Witness of the Americas

Religious Society of Friends

13

CHRIS YODER

14 Resident Baltimore, Marylan d

15

16

17

18

19

20 * * * * *

21

2215

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

2 (10:00 a.m.)

3 MR. DELLINGER: I'm going to do my

4 opening remarks, and then we'll call the first

5 group of peopl e up to speak.

6 Good morning, and thank you for

7 attending today's public hearing on the

8 Environmental Protection Agency's proposed rule

9 regarding the regulation of coal combus tion

10 residuals that are disposed of in landfills and

11 surface impoundments.

12 Before we begin I'd like to thank you

13 for taking the time out of your busy schedules to

14 address our proposed rule, and we look forward to

15 receiving your comments. This is the first of

16 seven public hearings that we'll be conducting.

17 The other hearings are scheduled in Denver,

18 Dallas, Charlotte, Chicago, Pittsburgh, and

19 Louisville.

20 My name's Bob Dellinger. I'm the

21 director of the Materials Recovery and Waste

22 Management Division of EPA' s Office of Resource16

1 Conservation and Recovery, and that's within the

2 Office of Solid Waste and Emergency Response of

3 the E nvironmental Protection Agency. With me on

4 the panel today are Laurel Celeste, Jesse Miller,

5 and Steve Souders.

6 Before we begin the public hearing, I'd

7 like to provide you w ith some background that

8 briefly describes the proposed rule on which we're

9 taking comments today as well as the logistics on

10 how we plan to run today's hearing. Coal

11 combustion resid uals, or CCRs, are residues from

12 the combustion of coal at electric utilities and

13 include fly ash, bottom ash, boiler slag, and flue

14 gas desulfurization materials. Coal combustion

15 res iduals contain contaminants such as mercury,

16 cadmium, selenium, and arsenic.

17 In 2008, 136 million tons of coal

18 combustion residuals were generated by electric

19 utilities and i ndependent power producers. Of

20 that total, approximately 34 percent were

21 landfilled, 22 percent were disposed in surface

22 impoundments, 37 percent were beneficially used,17

1 and 8 percent were placed in mines. The Agency

2 estimates that there are approximately 300

3 landfills and more than 600 surface impoundments

4 where coal combustion residuals are disposed.

5 EPA has proposed to regulate these coal

6 combustion residuals to ensure their safe

7 management when they are disposed in landfills and

8 surface impoundments. Without proper protections,

9 the contaminants in these residuals can leach into

10 groundwater and migrate to drinking water sources

11 posing public health concerns. In additi on, the

12 structural failure of a surface impoundment in the

13 Tennessee Valley Authority's plant in Kingston,

14 Tennessee, in December 2008, released more than 5

15 million cubic yards of coal ash over approximately

16 300 acres of land and contaminated portions of the

17 Emory and Clinch rivers.

18 With this proposal, EPA has opened a

19 national dialogue by calling for publ ic comment on

20 two different regulatory approaches available

21 under the Resource Conservation and Recovery Act

22

-- also called RCRA

-- and both of these address18

1 the risks from the disposal of coal combustion

2 residuals in slightly different ways. One option

3 presented in the proposed rule draws from the

4 author ities available under Subtitle C of RCRA.

5 This would create a comprehensive program of

6 federally enforceable requirements for waste

7 management and disposal. The other option is

8 based on the authorities of Subtitle D of RCRA,

9 which gives EPA the authority to set national

10 minimum criteria for waste management units that

11 would be enforced primarily by the states and

12 t hrough citizen suits.

13 EPA decided to co

- propose these two rule

14 options to encourage a robust dialogue on how to

15 address the human health concerns and structural

16 integrity is sues associated with the disposal of

17 coal combustion residuals in landfills and surface

18 impoundments. EPA wants to ensure that our

19 ultimate decision is based on the best data

20 availabl e and is made with the substantial input

21 of all stakeholders. Therefore, we ask that you

22 provide us your comments not only at today's19

1 hearing, but any other comments and supporting

2 information that you want to provide in writing.

3 I'd also like to say a few words about

4 the beneficial use of coal combustion residua ls.

5 The proposed rule maintains the Bevill exemption

6 for coal combustion residuals that are

7 beneficially used and, therefore, would not alter

8 the regulatory status of these residuals w hen used

9 in this manner. EPA continues to strongly support

10 the safe and protective beneficial use of coal

11 combustion residuals.

12 However, the proposal also indicates

13 that concerns have been raised about uses of coal

14 combustion residuals, particularly when used in an

15 unencapsulated form. Therefore, we request

16 comments, information, and data on specific

17 aspects of beneficial use, particularly those

18 activities that deal with unencapsulated

19 applications. We also make clear in the proposal

20 that coal combustion residuals that are placed in

21 sand and gravel pits, quarries, and other

22 large

- scale fill operations are not examples of20

1 beneficial use. EPA views these as disposal and

2 would regulate it as disposal under whichever

3 regulatory option EPA finalizes.

4 Now I'll cover some logistics for the

5 comment portion of today's public hearing

.

6 Today's public hearing will work as

7 follows: Speakers, if you preregistered, you were

8 given a 15

- minute time slot when you were

9 scheduled to give your 3 minutes of testimo ny. To

10 guarantee that slot we've asked that you sign in

11 10 minutes before your 15

- minute slot at the

12 registration desk. All speakers, those that

13 preregistered and walk

- ins, were give n a number

14 when you signed in today, and this is in order

--

15 this will determine the order in which you'll be

16 speaking. I will call speakers to the table by

17 number, four at a time

-- and that table is over

18 on my right, your left of the room

-- and each

19 speaker will have three minutes to speak.

20 We'll be using an electronic timekeeping

21 system and we'll also hold up cards to let you

22 know when your time is getting low. When we hold21

1 up the first card, it means that you have 1 minute

2 left in your time; and when we hold up the second

3 card, you have 30 seconds remaining; and when we

4 hold up the third card, your time has ended. When

5 you've completed speaking, please return to your

6 seat at the table and remain there until all

7 speakers in your group have completed their

8 testimony. And after that time, you can carry

9 your

-- any written materials over and put it i n

10 with the court reporters.

11 We're here today to hear your comments

12 on this proposed rule. We want to hear what you

13 like and what you think needs improvement or

14 clarification. To the extent that you believe

15 that portions of the proposal need to be improved

16 or are not clear, please let us know both today

17 and in any written comments that you may provide.

18 We will not be answering questions on

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

20 us on the hearing panel may ask questions of you

21 to clarify your testimony. If you've b rought a

22 written copy of the comments you are giving today,22

1 please leave a copy in the box by our court

2 reporter, as I ment ioned before. If you're only

3 submitting written comments today, please put

4 those in the box by the registration desk. If you

5 have additional comments after today, please

6 follow the i nstructions on the yellow handout

7 sheet that you were provided and submit your

8 comments by November 19, 2010.

9 Our goal is to ensure that everyone who

10 has come today to presen t testimony is given an

11 opportunity to provide comments. To the extent

12 allowable by time constraints, we will do our best

13 to accommodate speakers who have to preregistered.

14 Today's hearing is scheduled to close at

15 9:00 p.m., but we will stay later if necessary.

16 Right now we're pretty much working through lunch.

17 We made that determination because of the number

18 of speakers. If, however, time does not allow you

19 to present your comments orally, we have prepared

20 a table in the lobby where you can provide a

21 written statement in lieu of oral testimony, and

22 these written statements will be collected and23

1 entered into the docket for the proposed rule and

2 will be considered the same as if you presented

3 them orally. If you'd like to testify, but have

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

5 registration desk.

6 An agenda can be found in the packe t you

7 received when you signed in today. Also included

8 is some material on the proposal as well as

9 instructions for submitting comments. We plan to

10 take occasional breaks according t o the agenda.

11 We will shorten the breaks with high attendance.

12 We've already made that determination by working

13 through most of lunch and taken, I think, about a

14 10

- or

- so minute break to switch out the panelists

15 here. And we're going to try to get as many

16 people to be able to testify as possible today.

17 Finally, if you have a cell phone, we

18 would appreciat e it if you can turn it off or turn

19 it to vibrate. And if you need to use your phone

20 at any time during the hearing, please move to the

21 lobby or somewhere outside the hearing room.

22 We ask for your patience as we proceed.24

1 This is the first hearing. There may be a couple

2 glitches. We'll try our best, you know, to

3 maintain a nice steady flow for this hearing. We

4 may need to make some minor adjustments, as I

5 mentioned, and thanks again for participating.

6 We're really glad to see this kind of a turnout.

7 The one in Denver later on this week seems like

8 it's filling up to be a very full hearing as well.

9 So we should get started right now, and

10 now I need to find my piec e of paper here. I'm

11 calling up the speakers number 2, 3, 4, and 5 to

12 move over to the speakers' table.

13 And Speaker Number 2 can move forward

14 and state your name, and then p rovide your

15 comments.

16 MR. GOLDSTEIN: I'm Nick Goldstein,

17 assistant general counsel for the American Road

18 and Transportation Builders Association.

19 ARTBA represents more than 5,000 members

20 nationwide in all sectors of the transportation

21 design and construction industry. First off,

22 thank you for holding today's public hearing.25

1 ARTBA members routinely use coal ash to produce

2 concrete, which is an essential material in

3 transportation improvement projects. The

4 transportation sector's use of coal ash is truly

5 an environmental success story. According to

6 EPA's own data, coal ash accounts for between 15

7 and 30 percent of the cement and concrete.

8 Further, EPA has noted using coal ash at this

9 level results in GHG reductions of between 12.5

10 and 25 tons, and an annual reduction in oil

11 consumption of between 26.8 and 53.6 million

12 barrels.

13 Further, as EPA has noted, coal ash

14 generally makes concrete stronger and more

15 durable, which reduces the need for future cement

16 manufacturing and corresp onding avoided energy

17 emissions and energy use. In 2008 alone, more

18 than 12.5 million tons of coal ash were used in

19 the production of concrete. Specific details on

20 the beneficial use of coal ash in transportation

21 improvements has been reported from a variety of

22 states, including Colorado, where the use of coal26

1 ash resulted in GHG emissions reductions of 19,500

2 tons; Indiana, where transportation was able to

3 use an average of 42 percent of the recycled coal

4 ash in the state; North Carolina, where the us e of

5 coal ash is saving 5

- to 10 million annually on

6 transportation projects; Texas, where those

7 savings are estimated at 16 million annually; and

8 perhaps most recognizably in Minnesot a, where coal

9 ash was used in the concrete for the new I

- 35

10 bridge replacement.

11 In order to preserve all of the benefits

12 that recycled coal ash has provided to the

13 transportation sector and the environment, ARTBA

14 urges EPA not to regulate coal ash as a hazardous

15 waste. On at least four separate occasions

-- in

16 1988, 1993, 1999, and 2000

-- EPA has found c oal

17 ash did not warrant regulation as a hazardous

18 waste. There's been no new scientific information

19 since the last time this issue was broached to

20 warrant reaching a different conclus ion now.

21 Every element of the transportation

22 construction process, from the suppliers of27

1 concrete to the contrac tors who handle

2 constructions materials, would be affected by the

3 stigma of a hazardous waste label for coal ash.

4 Specifically, because of the increased expense of

5 handling a hazardous waste, producers of coal ash

6 would be resistant to continue providing it to

7 concrete manufacturers.

8 Ultimately, without coal ash, concrete

9 will become more expensive and les s durable. This

10 will not only increase the environmental footprint

11 of the transportation sector because more concrete

12 production will be necessary, but it will also

13 increase the overa ll cost of transportation

14 projects to the public.

15 In conclusion, ARTBA takes great pride

16 in the environmental successes the transportation

17 sector has been able to achieve thr ough the

18 recycling of coal ash. ARTBA urges the EPA to

19 allow these achievements to continue and even grow

20 by rejecting the option of regulating coal ash as

21 a hazardous waste.

22 Again, thank you for holding this28

1 hearing. We in the regulated community really

2 appreciate this forum to be able to stat e our

3 views.

4 MR. DELLINGER: Speaker Number 3?

5 MR. SHAFFER: My name's Eric Shaffer,

6 and I'm director of the nonprofit Environmental

7 Integrity Pro ject . I appreciate the opportunity

8 to testify in favor of strong federal standards

9 for coal combustion waste.

10 I want to use my time to challenge EPA

11 to take a much more act ive role in investigating

12 this problem than I believe the Agency has. Last

13 week, EIP, Earthjustice, and the Sierra Club,

14 released a report documenting another 39 coal ash

15 sites that h ave contaminated groundwater or

16 surface water adding to the 31 we provided you in

17 February. And when I say "contamination," I mean

18 arsenic, lead, and other toxic metals that exceed

19 dr inking water or water quality standards

20 sometimes by a factor of 10 or more.

21 Now, we know most of this data comes

22 from monitoring wells that are on

- site, but that's29

1 because states almost never require off

- site

2 monitoring. Where that data exists, it invariably

3 shows contamination.

4 My qu estion to you is, the law requires

5 you to evaluate this damage. What are you doing

6 to evaluate the information we presented to you?

7 And, more importantly, why aren't you taking the

8 in itiative to get this kind of information

9 yourself?

10 We hear a lot of talk about coal ash not

11 being hazardous based on the so

- called toxicity

12 characteristic leaching procedure used for

13 chemical waste. But I think EPA's known for more

14 than four years now

-- the National Research

15 Council warned you

-- that this was not the right

16 test for coal ash because it d oesn't accurately

17 predict leaching rates from that material. And,

18 of course, we have now groundwater contamination

19 at more than 100 sites.

20 So are you going to act on the NRC 's

21 recommendations or are you going to continue to

22 allow people to use a test that I think you know30

1 to be inaccurate?

2 The law also requires you to consider

3 the impact the rule may have on recycling, but as

4 defined by industry more than half of recycling

5 includes structural fills and minefills and other

6 land applications that are often little more than

7 disposal in disguise. That end of the market is

8 growing. The share of ash and scrubber sludge

9 used for wallboard and gypsum

- - I'm sorry, and

10 cement has stayed relatively flat. So while we

11 don't doubt that some of these fill projects are

12 designed responsibly, EPA has conceded that some

13 aren't.

14 Are you gathering data in any kind of

15 systematic way that will help you distinguish

16 responsible recycling from midnight dumping? I

17 don't think these, you know, sham recycling

18 operators are going to walk through the door and

19 introduce themselves.

20 Now, we understand recycling can benefit

21 the environment; we don't understand how you're

22 quantif ying those benefits. You said in your June31

1 proposal that recycling coal ash into cements

2 knocks out 26,000 tons of fine particle pollution.

3 Your office says the entire industry that you were

4 looking at emits no more than 15,000 tons, and

5 that's going to go to 3,000 tons in 2013. So how

6 are you pulling 26,000 tons out of a n industry

7 that's not going to emit any more than 3,000? We

8 don't understand that.

9 A lot of talk about Subtitle D. Under

10 Subtitle D, if you contaminate groundwater at

11 these sites, you are supposed to be shut down or

12 upgraded. How many of these sites failed to meet

13 that standard and has anything been done about

14 enforcement?

15 We hope that you'll listen carefully to

16 the testimony here today, but I don't think this

17 will be the kind of decision you can make by just

18 letting all of us fight it out like gladiators

19 with the prize going to whoever's left standing at

20 the end. No, please live up to the

21 administrator's promise to make a decision based

22 on law, based on the facts, and the best available32

1 science. There are a lot of people who can't

2 afford to be in the room today who are depending

3 on you to make the right choice.

4 MR. DELLINGER: Speaker Number 4?

5 MR. STINE: Good morning. My name is

6 James Stine. I'm a senior principal for

7 environmental policy at NRECA, the National Rural

8 Electric Cooperative Association. NRECA is a

9 national service organization for more than 900

10 not

- for

- profit, rural electric utilities that

11 provide energy to approximately 42 million

1 2 consumers in 47 states and 12 percent of the

13 nation's population. These are primarily private,

14 not

- for

- profit companies that are owned by the

15 consumers they serve.

16 The se companies include about 66

17 generating and transmission cooperatives which

18 generate and transmit power to the distribution

19 cooperatives. Most of these generators were built

20 during or shortly after the national energy crisis

21 of the late '70s, early '80s. This was the time

22 when new supplies of electricity were desperately3 3

1 needed and when coal, to a large extent, was the

2 only fuel choice for co

- op generators due to the

3 Fuel Use Act and prevailing economic conditions.

4 As a result, NRECA's members will b e directly and

5 possibly disproportionately affected by the final

6 CCR rule. And I do very much appreciate, as the

7 others have said, the opportunity to speak today.

8 Let me say up front that NRECA favors

9 the development of federal regulations for CCRs,

10 but under RCRA Subtitle D, nonhazardous waste

11 program. We evaluated the alternatives and

12 believe that the Subtitle D prime option is the

13 best path forward. These rules will establish a

14 federal floor that all CCR facilities must meet.

15 On the other hand, NRECA is strongly

16 opposed to using the Subtitle C approach. EPA can

17 obtain a higher level of protection for human

18 health and the environment without resorting to

19 the unnecessary and extreme measure of regulating

20 CCRs under records hazardous waste rules. In

21 fact, Congress has given EPA guidance on how to

22 proceed in cases like this when they have34

1 different regulatory options before them and both

2 options receive essentially the same result. In

3 cases where small businesses like co

- ops are

4 affected, EPA is obliged to pursue the le ast

5 costly approach in order to mitigate impacts in

6 the firms that can least afford them.

7 Moreover, Congress made clear in

8 enacting the Bevill amendment, under which this

9 decision is being made, that EPA should avoid the

10 Subtitle C option if at all possible. The

11 proposed controls for CCRs are virtually identical

12

-- under C and D the proposed controls

-- a nd they

13 would be expected to provide the same increased

14 levels of protection. However, all the other

15 requirements and consequences that would come with

16 regulating coal ash under hazar dous waste rules

17 would likely cripple coal ash beneficial use and

18 impose unnecessary regulatory costs on power

19 plants, threatening jobs and increasing

20 electricity rates.

21 Co

- op systems are relatively small, and

22 by regulation they're not allowed to maintain35

1 large capital reserves. When the cost fo r running

2 their businesses suddenly increase, like they

3 would under Subtitle C, cooperatives must go

4 directly to their lenders. There is no cushion to

5 mitigate the increases and the c osts of new loans

6 to be shared directly by each co

- op member.

7 Thank you very much for this opportunity

8 to speak.

9 MR. DELLINGER: Speaker Number 5.

10 MR. WARD: Good morning. My name is

11 John Ward. I'm chairman of Citizens for Recycling

12 First, and I wish to thank you for the opportunity

13 to testify today. Citizens for Recycling First is

14 an organization of more than 1,500 individual

15 members who believe that the best way to solve

16 coal ash disposal problems is to stop throwing the

17 coal ash away. Coal ash recycling can be done

18 safely and effectively, and it creates significant

19 benefits: Environmental benefits, improved

20 product performance benefits, and economic

21 benefits.

22 Ci tizens for Recycling First supports36

1 stronger regulation of coal ash disposal and does

2 not object to federal enforcement authority over

3 that program. But if getting federal enforcement

4 authority requires designating coal ash a

5 hazardous waste in any setting, the effects on

6 recycling in the United States will be decimating.

7 The hazardous waste stigma is real. A

8 hazardous waste stigma presents significant

9 barriers at every step of the chain, from the

10 people who generate coal ash to the people wh o

11 specify its use to the people who incorporate it

12 in products, right down to the end

- use consumers.

13 How many people want to have something that's

14 called hazardous waste somewhere else in their

15 home or their school or their driveway or their

16 roads or many of the places that we can use this

17 material productively?

18 While we appreciate EPA's statements

19 that the Agency continues to support beneficial

20 use, actions like creating the new label of

21 "special waste" are not helpful in shielding the

22 users from the potential liabilities of this. And37

1 actions like shutting down the coal combustion

2 products partnership are actually having a

3 detrimental effect to the recycl ing industry today

4 well in advance of the conclusion of this rule.

5 If the goal of this rulemaking is to

6 protect the environment, then EPA should pursue

7 policies that encoura ge more safe and effective

8 recycling of coal ash as a preferred alternative

9 to disposal. That means that we cannot use

10 Subtitle C as a vehicle to promulgate those rules.

11 Spe aking for more than 1,500 citizens

12 who care about the environment, please do not use

13 Subtitle C as the way to enact these rules. We

14 can improve disposal regulations in this country

15 wi thout destroying an industry that creates real

16 benefits for our environment.

17 Thank you very much for the opportunity

18 to testify.

19 MR. DELLINGER: Okay, we're calling up

20 the speakers 6, 7, 8, and 9. All right, Speaker

21 Number 6?

22 MS. SCHAFFER: Good morning. My name is38

1 Amy Schaffer. I represent the American Forest and

2 Paper Association. AF&PA is the National Trade

3 Association of the forest products industry

4 representing pulp, paper, packaging, and wood

5 products manufacturers and forest landowners. Our

6 companies make products essential for everyday

7 life from renewable and recyclable resources that

8 sustain the environment, that is, trees. The

9 industry is among the top 10 manufacturing sector

10 employers in 48 states.

11 According to the Energy Information

12 Administration, the pulp and paper industry uses

13 about 1 percent of the coal burned in the United

14 States. We use coal to generate electricity and

15 steam. Virtually all of our facilities that

16 generate electricity do so using highly efficient

17 combined heat and power technology. As a result,

18 we are greatly interested in the rulemaking that

19 EPA is undertaking concerning the regulatory

20 scheme for coal combustion byproducts.

21 AF&PA supports EPA's decision not to

22 include coal combustion byproducts from the39

1 manufacturing sector in this rule making. We

2 believe that our management of coal ash differs

3 somewhat from that of the electric utilities.

4 Pulp and paper mills use a wide variety of fuels

5 in addition to coal. As a re sult, our mills

6 frequently co

- manage coal ash with ash generated

7 from other fuels, particularly biomass. We

8 believe that our ash management units are

9 significantly smaller than those in the electric

10 utility sector. Therefore, we think it makes

11 sense to review our operations separately before

12 regulating them.

13 AF&PA strongly supports the decision

14 reached by the Clinton Administration in 2000 that

15 coal ash should be regulated under Subtitle D, the

16 nonhazardous waste provisions of RCRA. We believe

17 that much of the additional information developed

18 by EPA subsequent to that determination does not

19 support the need for applying the onerous

20 hazardous waste regulations to coal combustion

21 byproducts. Appropriate management standards and

22 engineering design would have avoided the40

1 catastrophic failure of the TVA surface

2 impoundment, which can be a chieved through the

3 nonhazardous waste requirements.

4 Frankly, my members prefer the Subtitle

5 D prime option which allows the grandfathering in

6 of existing units that are not leaking. Many of

7 the impoundments in landfills used by my members

8 are monitored and do not show any signs of

9 encroachment into the environment. We believe

10 that those units should con tinue to be used

11 without additional changes. AF&PA members are

12 extremely concerned with EPA's belief that

13 beneficial use of coal combustion residues will

14 rise if disposal is regulated under the hazardous

15 waste regulations. Nothing is further from

16 reality.

17 Our members work hard to find beneficial

18 uses for all of our residuals. It is not a

19 question of whether the use is appropriate; it's a

20 recognition of the reality of our litigious

21 society. AF&PA members are very concerned that

22 EPA did not evaluate the economic impact of the41

1 proposed rule for the manufacturing sector. And I

2 have provided additional information in these

3 written

-- in my oral comments and will also

4 provide additional written comments. Thank you.

5 MR. DELLINGER: Thank you. Speaker

6 Number 7?

7 MR. JACKSON: Good morning. My name is

8 Michael Jackson. I'm the District Attorney of the

9 4th Circuit in Alabama that includes Perry County.

10 I prosecute all types of criminals

-- murderers,

11 rapists, gang members, et cetera

-- but I have to

12 say it's hard to monitor the criminals who are

13 destroying the environment.

14 I believe coal ash should be treated as

15 a hazardous waste. Perry County, specifically

16 Uniontown, one of the areas I represent, that was

17 the area that received over a million tons from

18 the TVA ash. I remember one evening I was at a

19 meeting involving something totally different, bu t

20 we came outside when the meeting was over and one

21 of the ladies brought it to my attention about the

22 smell in the air that night. It was a clear42

1 night, but you could smell that smell very

2 strongly, and the area was maybe two miles away

3 from the landfill that received all that ash.

4 Recently, I received an e

- mail from a

5 priest who talked about illegal discharge and the

6 leaching from a tanker truck. And, certainly, I

7 believe that priest would be telling the truth.

8 These dumpi ng grounds are often in minority areas.

9 You never see that in a rich area. We have some

10 very wealthy counties in Alabama, but they picked

11 one of the poorest areas, the Black Belt. Some

12 areas in the Black Belt are like a Third World

13 country, and you really, you can't find 10 people

14 in that area of Uniontown that wanted that ash

15 dumped there. It has one of the poorest health

16 systems around. There's no hospital, there's no

17 nothing.

18 People talked about their water being

19 dirty now and that type of thing, and we need

20 help. I'm being bomb arded now about going out to

21 the landfill people, people that are dumping

22 things. And as a prosecutor, again, I prosecute43

1 the normal criminal that you think of. But it's

2 getting to the point where there needs to be

3 stronger laws to deal with this situation. Poor

4 people need a voice, and I've been trying to be

5 that voice, but I do need help. And I'd ask EPA

6 again to regulate this material as a hazardous

7 waste.

8 Thank you.

9 MR. DELLINGER: Speaker Number 8?

10 MR. McGRATH: Good morning. James

11 McGrath, concerned citizen, Giles County. In our

12 county we have a coal combustion byproduct project

13 that has fallen through the cracks and should b e

14 the national poster child for an impaired system

15 of checks and balances. It's called the

16 Cumberland Park Fly Ash Project, and it's located

17 next to the New River at Narrows, a town i n Giles

18 County.

19 The project should fall under FEMA

20 minimum permit requirements, Executive Orders, and

21 federal regulations, but none of these were

22 followed b ecause if they had, our county would44

1 have had public hearings for the citizens to speak

2 out. By calling this dump a beneficial use of

3 coal combustion waste, our local government

4 maintains it was exempted from having any public

5 hearings for citizen input. This was done

6 intentionally and without any regard for federal

7 requirements.

8 Initially, Cumberland Park violated FEMA

9 policy and federal regulations by not applying for

10 the federally prescribed development permit.

11 Three year s later, American Electric Power is

12 rushing to finish the site before the EPA decides

13 how to regulate CCB. The locality's intentional

14 avoidance of FEMA permit requirements, Executive

15 Orders, and federal regulations can realistically

16 bring to question the legality of any dumping of

17 coal combustion byproduct at the site.

18 Who will be eventually responsible for

19 the removal of all this coal combustion byproduct

20 from the floodplain when the toxic heavy metals

21 percolate through the dump and into a river that

22 serves as a water supply and source of recreation45

1 for communities downriver? Our children or our

2 grandchildren? Situations like Cumberland Park

3 can happen anywhere, and wit hout the special waste

4 designation and regulation under Subtitle C, the

5 public is not protected environmentally,

6 medically, or democratically.

7 When left to policing themselve s, like

8 the power and coal companies with their

9 million

- dollar lobbyists want you to do, you end

10 up with Tennessee Valley disasters and unlined fly

11 ash fields like Cumberland Park. W e, the people,

12 really need your help. Don't give in to the

13 corporate lobbyists for industries who value

14 profit over people. Please give us back our voice

15 and regulate this toxic wast e under Subtitle C

16 where it belongs.

17 Please come to Giles County and help the

18 citizens finally understand if we are part of the

19 United States or a AEP corporate fiefdom with the

20 court jester being the county administration.

21 Thank you.

22 MR. ROBERTSON: My name is John46

1 Ro bertson. I'm an attorney, and the gentleman who

2 just spoke is one of scores of individuals in

3 Giles County whom I represent. I am a classic

4 example of why Subtitle D will not work. When I

5 was a starry

- eyed law student, I wanted to

6 prosecute environmental crimes for the

7 Environmental Protection Agency. There was a

8 hiring freeze at that time, and, logistically, I

9 could not afford to do that. Years later, I find

10 myself drawn to that same type of problem where

11 citizens are in need of some sort of help.

12 The industries that are speaking to you

13 to ask for regulation under Subtitle D are able to

14 afford hundreds of attorneys. They are able to

15 afford millions of dollars. The citizens in Giles

16 County are able to afford me. Citizen suits are

17 going to be very difficult under Subtitle D. They

18 will be outgunned, they will be outmanned, and

19 they will likely be done in by the war of

20 attrition.

21 W e would ask for Subtitle C to cover

22 coal combustion waste because, as Mr. McGrath had47

1 indicated, the way that the Cumberland Park

2 Project is currently structured is not a

3 beneficial use, and it's something that the EPA

4 has recognized under any regulation would not be

5 recognized as a beneficial use. Unfortunately,

6 the patchwork of regulation between the states

7 would have one state regulating the type of

8 project that Giles County has as a hazardous waste

9 dump and requiring monitoring, permitting, lining;

10 whereas in our neck of the woods, you have an

11 unlined site next to a source of drinking water

12 for communities that live downriver. That's

13 something that should not be permitted to oc cur.

14 I have had some interesting

15 conversations with individuals in this room before

16 coming here, some of whom are engineers and

17 scientists. They would have me urge you look at

18 the science and the data. I agree, but I think

19 that you should go further. I think that you need

20 to revisit the standards by which you evaluate the

21 impacts of this waste. The sim ple fact that it is

22 not leaching now will not guarantee that the48

1 hazardous metals, which the EPA will agree are bad

2 for hum an health, will eventually leach into

3 groundwater if they are put over groundwater.

4 They will eventually permeate through these sites

5 which are unlined, which are currently classified

6 as beneficially use.

7 We believe that the only way that this

8 problem can be controlled is by regulation under

9 Subtitle C. It would be the only tool that

10 citizens, like the ci tizens of Giles County, would

11 be able to have as opposed to pooling their

12 resources to hire one attorney as opposed to the

13 industry that's able to afford an entire firm of

14 attorneys. Thank you.

15 MR. DELLINGER: Numbers 10, 11, 12, and

16 13.

17 MR. TODD: Hello. My name's Sean Todd.

18 I'm speaking here on behalf of the Coal Boilers

19 Sla g Consortium, a group of seven companies that

20 process and distribute coal boiler slag from

21 coal

- powered power plants.

22 The boiler slag industry is comprised of49

1 8 companies, 27 plants, about $200 million in

2 revenue across 20 states, affecting thousands of

3 people. We want to emphasize that coal boiler

4 slag is a unique byproduct of CCBs. It is

5 different than the other three major categories.

6 It is

-- as the smallest category, it has unique

7 physical and chemical characteristics. It's

8 squashed in water at the bottom of the furnace and

9 is, therefore, vitrified. It is an inert

10 material; it has a Mohs Scale hardness of 6+ and

11 extremely low leachability. Because it is

12 environmentally benign, the boiler slag is hot and

13 in high demand for a number of consumer products.

14 More than 90 percent of coal boiler slag

15 is beneficially used and recycled. For exa mple,

16 80 percent of all roofing shingles in this country

17 contain boiler slag. I would like to leave with

18 you four main points this morning.

19 One, EPA's own technical reports and

20 scientific studies have declared slag to be

21 nonhazardous in four different reports since 1980.

22 These four rulings demonstrate that slag does not50

1 meet the statutory definition of hazardous waste

2 or, by the criteria establish ed to list a waste.

3 The vitrified characteristic of slag makes it

4 virtually ine rt and environmentally benign.

5 Two, there are already efforts in the

6 commercial marketplace to stigmatize boiler slag.

7 I have several published advertisements from trade

8 jour nals that attempt to scare consumers and

9 distributors by showing a skull questioning the

10 safety of slag. If slag is designated as a

11 Subtitle C waste, but listed as special waste, I

12 wo uld expect only more of these commercial scare

13 tactics.

14 In response to EPA's specific question

15 on stigma and the draft rule, it is difficult to

16 quantify the effects of the po ssible stigma.

17 These four or five advertisements have caused an

18 uptick in requests for TLCP data. The industry

19 cannot say that we have lost business yet.

20 Opponents are simply attachin g a false stigma of

21 hazardous waste that raises questions, and if an

22 audience is not informed, it will cause real51

1 problems for continuing recycling of boiler slag.

2 Three, boiler slag should be held as a

3 model for EPA for beneficial use. Keeping the

4 Bevill exemption in place or even expanding it is

5 the best action the Agency can take to create

6 incentives for beneficial use. By doing anything

7 else, it will impede beneficial use. Significant

8 negative impact will occur should further

9 regulation occur.

10 Fourth and final point, as a public

11 policy goal, EPA should predictably maintain the

12 maximum beneficial reuse of boiler slag. This

13 will require furt her clarification from EPA with

14 regard to fill and encapsulation definitions. The

15 use of boiler slag as an industrial abrasive grit

16 is protective of the health of U.S. workers.

17 Natura lly occurring abrasives contain crystalline

18 silica, which causes a severely debilitating lung

19 condition known as silicosis. Because it is

20 vitrified glassy material, boiler slag is a safer

21 and economical alterative to natural abrasives,

22 eliminating worker exposure to crystalline silica52

1 and silicosis. For these reasons the use of slag

2 as an abrasive should be clarified by EPA as a

3 beneficial use.

4 In conclusion, the final rule and other

5 public policies should maximize the recycling and

6 beneficial use of boiler slag. It is not common

7 for economic and environmental benefits to overlap

8 in the use of a commercial product, but we see it

9 in the recycling of boiler slag. Thank you very

10 much.

11 MR. DELLINGER: Speaker Number 11?

12 MR. OBLA: Good morning. My name is

13 Karthik Obla. I am the vice president, technical

14 service, for the National Ready

- Mix Concrete

15 Association. On behalf of NRMCA, I would like to

16 thank the Environmental Protection Agency for

17 conducting this listening session on this very

18 importan t issue.

19 As a matter of scale, Ready

- Mix concrete

20 consumes percent of all Portland cement used in

21 this country. We represent over 1,500 concrete

22 manufacturers and 50 state

- a ffiliated53

1 organizations. Concrete is the most widely used

2 construction material in the world, and it's

3 produced and consum ed in every congressional

4 district of our country. With regard to fly ash,

5 a major portion of coal combustion residuals, the

6 Ready

- Mix concrete industry is the largest

7 beneficial user

.

8 Surveys of Ready

- Mix concrete producers

9 show that over 55 percent of all Ready

- Mix

10 concrete contains fly ash. Fly ash is used in

11 commercial Portland cement to impart the f ollowing

12 important benefits to concrete: Increased

13 durability and service life; reduction of wastes

14 into landfills; reductions in raw materials

15 extracted; energy for production and ai r

16 emissions, including CO2; and lower concrete

17 materials costs.

18 While the concrete industry currently uses

19 about 15 million tons of fly ash annually, it is

20 estimated that the concrete industry could

21 increase its current use to more than 30 million

22 tons per year by 2020, resulting in less fly ash5 4

1 going to landfills and reducing the concrete

2 industry's carbon footprint by 20 percent, which

3 is the President's goal as well.

4 Based on the concrete industry's

5 extensive use of and reliance on fly ash in

6 concrete and our examining EPA's proposed rule, we

7 have (inaudible) RCRA Subtitle C designation for

8 CCRs' burn for disposal. Well

- written exemptions

9 for beneficial use will lead to the following

10 unintended consequences for the concrete industry.

11 One, an increase in production costs in

12 the course of production.

1 3 Two, an increase in potential liability

14 for concrete producers. Currently the regulatory

15 status of small amounts of fly ash in the waste

16 streams from concrete production and constructio n

17 is unclear. Any proposed rule should explicitly

18 state that such waste streams from the concrete

19 industry are exempt and not subject to such

20 regulations. There will also be litigati on which

21 will target existing structures built with fly ash

22 concrete.55

1 Three, potentially stricter state laws

2 impacting beneficial use. For example, a proposed

3 rule in the state of Maryland states that any

4 product containing fly ash is to be disposed of in

5 a special facility authorized to accept fly ash.

6 Most states will establish similar laws.

7 Four, the potential elimination of fly

8 ash concrete. A hazardous waste stigma and fear

9 of liability will drive specifying e ngineers,

10 architects, and end

- users to disallow the use of

11 fly ash in concrete. For example, the Los Angeles

12 Unified School District has banned the use of fly

13 ash until the EPA has fi nalized its position.

14 Five, there will be a drastic impact on

15 the durability of our nation's infrastructure.

16 Thank you for hearing my concerns on

17 behalf of the Read y

- Mix concrete industry. I

18 would be happy to answer any questions you may

19 have.

20 MR. DELLINGER: Speaker Number 12.

21 MR. STEERS: Good morning. My name is

22 Jeffery Steers, and I am the Waste Division56

1 director for the Virginia Department of

2 Environmental Quality. Today I'm providing an

3 abbreviated version of our Agency's formal written

4 comments on EPA's proposed regulatory schemes for

5 coal combustion residues, commonly referred to as

6 CCRs. While the Commonwealth ack nowledges that

7 improvements in the management of CCR are needed,

8 such regulatory changes are best left to

9 individual states.

10 Virginia has a strong solid waste

11 program that regulates the management of coal ash

12 as an industrial waste under this program.

13 Virginia's regulatory

-- Virginia's regulations

14 provide requirements for CCR management, including

15 the appropriate criteria for disposal units while

16 also allowing for its beneficial reuse in a manner

17 that is protective of human health and the

18 environment. The Commonwealth recognizes the n eed

19 to continuously enhance its regulations and has

20 been actively doing so even prior to EPA's

21 proposed regulations.

22 Virginia has concerns with EPA's57

1 proposals regarding the regulation of CCR, and

2 again we believe the regulation of this material

3 is best left to the states. We are especially

4 concerned with EPA's proposal to regulate this

5 material as a hazardous waste under the RCRA

6 Subtitle C. The EPA asserts that such treatment

7 is necessary for EPA in order to retain and

8 exercise appropriate enforcement authority.

9 States like Virginia have consistently

10 demonstrated the ability to conduct an effective

11 and comprehensive RCRA compliance and enforcement

12 program, as is illustrated in EPA's own feedback

13 to the State of Virginia during the state review

14 framework process.

15 We would remind you that EPA does have

16 broad RCRA enforcement authority to address

17 potential substantial threats or endangerments to

18 human health and the environment for releases of

19 solid waste. The proposed regulatory scheme is

20 counter to the intent and spirit of the federal

21 RCRA statute inasmuch as it is contrary to the

22 hierarchy of resource conservation, that is, to58

1 reduce, reuse, and recycle. There are problems

2 with EPA's proposals to regulate CCR under

3 Subtitle C and to some extent Subtitle D. I am

4 focusing my comments on the Subtitle C pr oposal.

5 Although EPA's proposal to regulate CCRs

6 as a hazardous waste under Subtitle C, EPA is not

7 calling CCRs a hazardous waste and indeed there is

8 no data to suggest other wise. Further, EPA itself

9 over the years has determined that CCRs do not

10 merit hazardous waste regulation, and by creating

11 a new S code of special hazardous waste is

12 effectively expan ding its authority to designate

13 any waste as hazardous whenever it desires with no

14 regard to the appropriate characterization of the

15 waste or the ability of states to effectively deal

16 with waste within its state borders.

17 As recognized in EPA's proposal, more

18 research is needed to truly understand the impacts

19 that CCRs may have in a landfill setting such as

20 the effect of compacting material and the ability

21 of metals to leachate. Virginia recommends that

22 EPA, as it has successfully done in many of its59

1 programs, develop guidance for the management of

2 CCR through the science, to continuously improve

3 research, and to work closely with the

4 organizations such as ECOS and ASTSWMO t o develop

5 an effective CCR program that can be implemented

6 at the state level.

7 Our Agency will be submitting additional

8 detailed written comments prior to the close of

9 the public notice period. Thank you.

10 MR. DELLINGER: Speaker Number 13.

11 MS. MOSELEY: Good morning. My name is

12 Lyndsay Moseley, federal policy representative of

13 Sierra Club. And on behalf of the 1.2 million

14 members and supporters, I want to thank EPA for

15 your commitment to protecting public health and

16 the environment, and for scheduling this and the

17 six other hearings around the country on the coal

18 ash rule.

19 The decision EPA makes regarding this

20 toxic waste stream is critically important. It

21 has the p otential to dramatically improve the

22 health and safety of thousands of communities60

1 living in the shadows of these giant toxic waste

2 disposal sites or to set a powerful precedent that

3 will ensure such protections are likely or never

4 obtained.

5 I am here also today speaking as an

6 individual who was born and raised in a lakeside

7 community outside Knoxville, Tennessee, not too

8 far from the disaster site, TVA Kingston site. I

9 happened to be visiting my parents in December

10 2008 when we heard the news about the TVA

- owned

11 dam failure. As soon as I could, I drove over to

12 Swan Pond Circle to evaluate the scope and scale

13 of this disaster for myself. I witnessed large

14 coal ashbergs filling the river, homes moved off

15 their foundations, ashy sludge covering yards and

16 gardens, and I witnessed clean

- up workers in

17 Hazmat suits while TVA said there were no

-- there

18 was nothing to worry about to the residents there.

19 I spoke with many confused, angry, and

20 frightened residents already mourning the loss of

21 their property and peaceful way of life and unsure

22 what they should be doing to protect themselves.61

1 I saw this firsthand, but millions of Americans,

2 through the w idespread news media coverage of that

3 disaster at the TVA site, also began to understand

4 and began a new conversation about the prevalence

5 of dangerous and irresponsible coal ash disposal

6 practices not just in Tennessee, but around the

7 country.

8 Poor structural integrity of an ash

9 disposal site is obviously not the only risk from

10 irresponsible coal ash disp osal. Other serious

11 risks such as the flow of leaching toxins into

12 groundwater, rivers, lakes, and streams, less

13 obvious to the average person, but no less

14 threatening to the health o f their communities.

15 Scientists, including EPA's own scientists, have

16 documented unsafe exposure to these heavy metals,

17 including arsenic, selenium, cadmium, chromium,

18 and others, can cause respiratory illness, organ

19 disease, cancer, learning disorders, et cetera.

20 We're having this conversation today

21 because states have failed time and again to adopt

22 and e nforce commonsense safeguards. In my62

1 opinion, it is abundantly clear that the only way

2 EPA can ensure a basic level of protection for all

3 communities near coal ash disposal sites is

4 through adopting commonsense regulations that are

5 federally enforceable, as outlined in the current

6 proposals.

7 The Sierra Club supports the Subtitle C

8 proposal because it would require the phase

- out of

9 the wet storage ponds like the ones that failed in

10 Tennessee, and ensure those basic protections,

11 like liners, leachate collection systems,

12 groundwater monitoring, financial assurance. Many

13 states do not require these things.

14 In my opinion, we urge EPA

-- Sierra

15 Club u rges EPA to protect communities at risk from

16 coal ash contamination, and in a sense this is a

17 choice. The choice between Subtitle C and

18 Subtitle D is a choice between protecting and

19 n eglecting citizens across the country.

20 Thank you for your time, and my

21 submitted comments, my written comments are a

22 little bit longer. Thank you.63

1 MR. DELLINGER: 201, 202, 203, and 17.

2 Number 201.

3 MR. KABIK: Hello. My name is Gefen

4 Kabik. Coal ash is obviously a hazardous waste.

5 It is unhealthy, it's causing a ton of illness,

6 and it's just hurting the people who are affected

7 by it. It's causing cancer, it's causing

8 respiratory diseases, and a lot of o ther things.

9 And if this stuff were happening to you, you guys

10 would understand it's not about the stigma

11 attached to calling it a hazardous waste, it's

12 about the people it's affecting

.

13 It doesn't matter about the economics of

14 it. Since when has money become more important

15 than people? People being affected by this can't

16 really stand up, many of them liv e in poverty and

17 don't have the resources to do things like sue the

18 companies. These companies have not been at all

19 taking responsibility for this, and they just keep

20 on doing this to make money, and not care about

21 people's lives.

22 People have always been affected by64

1 things related to coal, but t his is something that

2 affects people who have nothing to do with coal;

3 it can affect people who live miles away from

4 where it's being dumped, and they can't do

5 anything about it. And it's unfair for them, and

6 it's unfair for

-- it's unfair for them.

7 The coal ash companies will come here

8 and say that it's not a hazardous waste and that

9 it will affect lots of other things, but those

10 other things, they're not as important as the

11 people that they're affecting, and so that's why

12 you should call it a hazardous waste. Thank you.

13 MR . DELLINGER: Number 202.

14 MR. BROGUN: Hello, everyone. My name

15 is Chris Brogun. I work for a coal ash

- producing

16 company, but, more importantly, a company that has

17 striven to control the production of said ash.

18 Our process has been worked on for over a decade

19 now towards producing a much safer product to go

20 into concrete. Every ton of cement, as I'm sure

21 many of you know, produces one ton of carbon

22 dioxide. With the addition of fly ash to said65

1 concrete, we are able to lower the carbon

2 footprint throughout the construction environment.

3 And being from the metro New York area, I can tell

4 you that the carbon footprint can be rather large.

5 I implore the EPA to recon sider and work

6 towards Subtitle 4 rather than working under the

7 Subtitle 3, which will have very negative impact

8 on the industry at large, including construction,

9 basic materials produ ction, and the economy

10 throughout the area. Thank you very much.

11 MR. DELLINGER: Thank you. 203? 17?

12 SPEAKER: Here he is.

13 MR. DELLINGER: Oh, I'm sorr y.

14 MR. WATHEN: I'm in a state of

15 confusion. I've had too much coal ash. My name

16 is John Wathen. I'm the Hurricane Creekkeeper

17 from Tuscaloosa, Alabama. I'm here today to

18 represent the Citizens Coal Council as the

19 chairman of the Board of Directors. I'm here to

20 represent that Waterkeeper Alliance and

21 international federation of groups like mine that

22 believe in clean water.66

1 I first came in contact with the coal

2 ash from Kingston, Tennessee, in a canoe. I was

3 one of the three people that paddled up into the

4 Kingston ash hole and brought out the first

5 samples that proved TVA was lying through their

6 teeth. It was full of arsenic. I didn't know at

7 that time that coal ash was going to follow

8 me home to Kingston, Alabama, or I'd have been

9 much louder at the time.

10 I want to talk to you today about a

11 duality in standard and why we need a federal

12 regulation that controls this stuff in a uniform

13 way. In Kingston, Tennessee, the disaster ash is

14 being treated as a hazardous material. A truck

15 can't drive in and out of the lot without having

16 double

- wash standard: It has to be washed twice.

17 People have to wear white booties on their feet

18 and respiratory masks in order to work in the

19 area. There are dust

- sampling devices all around

20 the white affluent community of Swan Pond.

21 None of these conditions exist in Perry

22 County, Alabama. None. As a matte r of fact, in67

1 Perry County, Alabama, where the coal ash is being

2 brought now, there are trains that are bringing

3 this stuff in, 105 cars a day. They're coming in

4 in these sterile burrito wrappers that everybody's

5 so proud of to keep the dust out of the

6 communities as they transfer it.

7 When it ge ts to Perry County, Alabama,

8 they take track hose that are sitting up on top of

9 pads built out of coal ash with no best management

10 practices around them whatsoever. None. They

11 take t hese track hose, dig it out, dump it on the

12 ground, and then it runs into Tayloe Creek. A

13 recent EPA inspection, the EPA inspector said

14 that, and I quote, "Some of the material spilled

15 on the ground and ran into the creek." That is an

16 absolute fallacy. The material was intentionally

17 washed into the creek. I have photographs with

18 people with seven high

- pressure hoses

19 intentionally washing this mess into the creek.

20 The waste stream is coal ash. In

21 Alabama, the beneficial use says that you can use

22 coal ash as a top cover in the landfill. If68

1 beneficial use means that the waste stream has to

2 be segregated from the top cover, this is, in

3 essence, giving a waiver without due process to

4 use the waste stream for top cover. We have

5 clouds of dust blowing through our community now.

6 Why are the people in Kingston,

7 Tennessee, in the affluent white com munity of Swan

8 Pond treated any differently than the people of

9 Perry County, Alabama? I'll tell you why.

10 They're black, they're poor, they have no

11 political worth. And what I see hap pening in

12 Perry County today is nothing more than an

13 environmental crime. If EPA doesn't take some

14 action to stop this and create some kind of a

15 uniform procedure for handling this, t hen you are

16 nothing more than environmental criminals

17 yourselves.

18 MR. DELLINGER: Number 17.

19 SPEAKER: Clean coal is a dirty lie.

20 MS. MA IN: I'm Ivy Main from McLean,

21 Virginia. Thank you for the opportunity to speak

22 on the subject of coal ash. I was asked to come69

1 here today to deliver the words of someone who

2 could not be here, but who has a story to share.

3 I was sent her message a few days ago, and reading

4 it I was struck by something implicit in its

5 message about the way we, as citizens, trust our

6 government to do the right thing. Often we say we

7 don't. We speak cynically about politicians and

8 government workers, but there's no gre ater

9 testament to our basic faith than the fact that

10 when our government fails in its duty to protect

11 us, we're surprised as well as outraged. The

12 failure of oversight by the MMS that led to the

13 Gulf Oil spill and the inability of the FDA and

14 the USDA to prevent the massive salmonella

15 contamination of our egg supplies are just the

16 most recent examples. We're surpr ised as well as

17 outraged because we really do think that the

18 professionals who make up our government workforce

19 will act to protect us.

20 Even the people most vocal in advocati ng

21 less regulation and less oversight assume that the

22 government agencies won't cave in so far as to70

1 threaten public health and safety. And ordinary

2 people are totally reliant on this, on this idea

3 that the government will do the right thing to

4 protect us. If you say coal ash isn't hazardous,

5 they aren't going to say, well, I'd better protect

6 myself from whatever might be in there anyway.

7 They have way too much faith in you for that.

8 I'm now going to read you the words of

9 Dr . Christine Llewellyn of Williamsburg, Virginia,

10 and you'll see what I mean. She writes, "I worry

11 every time I see road workers in a cloud of dust

12 as they jackhammer up concrete, concrete made with

13 heavy metal

- laced coal ash. They may be wearing

14 ear protection, but they're not wearing

15 respirators. And this is called beneficial reuse.

16 I doubt it is benefitting the workers unknowing ly

17 exposed to it since it is not designated as

18 hazardous.

19 "Coal combustion waste is only one of

20 the many negative effects of combusting coal, but

21 must be de signated for the toxic hazardous

22 substance that it is. If this designation causes71

1 the cost of electricity to go up, then perhaps we

2 will just be starting to pay some of the true cost

3 of coal."

4 As Dr. Llewellyn points out, these road

5 workers haven't a clue what they're working with,

6 and it's not their employers they trust to protect

7 them. It's their government. It's you. Don't

8 let them down. Thank you.

9 MR. DELLINGER: I got a little bit out

10 of order. I misread t he

-- you know, one of the

11 notes that I got, and so the next speakers will be

12 14, 16, 18, and 19.

13 MS. SANTIAGO: Good morning. My name is

14 Ruth Santiago. I'm a lawyer from S alinas, Puerto

15 Rico. I work with community groups in

16 Southeastern Puerto Rico.

17 Hundreds of thousands of tons of coal

18 ash are being used as fill material at

19 construction sites above the South Coast aquifer

20 in Southeastern Puerto Rico. CCRs are being

21 deposited within a few meters of public water

22 wells, irrigation canals, streams, farms,72

1 wetlands, beaches, and other sensitive areas. The

2 aquifer is the sole source of potable water for

3 approximately 53,000 residents of Salinas a nd

4 Santa Isabel, and many more thousands of people in

5 neighboring municipalities.

6 In some places, contractors have

7 excavated huge holes that are filled with CCRs

8 below the aquifer water table. Groundwater

9 sampling results at the Salinas municipal

10 landfill, where coal ash has been used as daily

11 cover, indicate the presence of selenium and other

12 heavy metals associated with CCRs above background

13 levels. Residents of coastal areas fear that

14 heavy metals, toxins, and radioactive isotopes in

15 the CCRs are leaching into the water supply and

16 will cause serious public health problems.

17 In addition to providing potable water

18 for tens of thousands of people, the aquifer feeds

19 the unique Jobos Bay estuary, a designate d

20 National Estuarine Research Reserve. As in the

21 town of Pines, Indiana, the reserve and contiguous

22 areas where coal ash is being buried contain73

1 low

- lying, poorly drained wetlands. As in Pines,

2 the soil is very sandy, unconsolidated, acidic,

3 with high organic content. In some areas, the

4 aquifer is conta ined within a thin, less than 40

5 feet clay

- rich confining layer facilitating

6 contact with the CCRs, particularly during

7 hurricane season such as right now.

8 CCRs from the AES Puerto Rico, Limited

9 Partnership, power plant are virtually given away

10 at 15 cents per ton to anyone who will take them.

11 AES also provides free transportation to

12 residential and commer cial construction sites.

13 AES has no on

- or off

- site disposal facility and

14 disposes of all

-- disposes virtually all CCRs

15 that it admits exceeds 300,000 tons per year

16 through secondary use at construction sites and

17 daily cover at the landfill.

18 Even after construction is completed,

19 the coal ash is exposed because the rain erodes

20 the thin layer of dirt someti mes placed over the

21 CCRs. At once site a virtual mountain of CCRs was

22 dumped similar to the illegal disposal of AES74

1 residu es in the Dominican Republic in 2003/2004,

2 which has been the subject of various lawsuits and

3 a multimillion

- dollar settlement paid by AES.

4 In the settlement agreement, AES

5 p rohibited the Dominican government from using any

6 evidence that AES coal ash is toxic or harmful.

7 That's in paragraph 8 of that agreement. The

8 Agremax use contract that AES requires all

9 recipients to sign, limits the type of testing

10 that can be done on the CCRs. Thank you.

11 MR. DELLINGER: Speaker 16.

12 MS. NOLAN: Good morning. My name's

13 Jamie N olan, and I'm the communications director

14 for a regional nonprofit organization called the

15 Chesapeake Climate Action Network. On behalf of

16 our 65,000 members, activists, and volunteers in

1 7 Maryland and Virginia, I urge you to classify

18 toxic coal ash as a hazardous waste under Subtitle

19 C of the RCRA so that this harmful substance can

20 be regulated aggressively at the federal level.

21 In Maryland, we have three major coal

22 combustion waste facilities in three different75

1 counties: Prince George's Cou nty, Charles County,

2 and Anne Arundel County. In Virginia, we have 20

3 recorded facilities that are either dry landfills

4 or wet ash ponds.

5 We are submitting comments on behal f of

6 our members who live within five miles of all of

7 these facilities and are negatively impacted by

8 these facilities on a daily basis. In Maryland

9 alone that includes around 300 mem bers.

10 Additionally, there is a landfill proposed for the

11 City of Baltimore which hosts hundreds of members

12 within a five

- mile radius of the proposed site.

13 You will hear exten sive testimony from

14 impacted community members about the dangers of

15 coal ash, so I'll be very succinct in my testimony

16 and offer you an example of the impacts from a few

17 members in one community located in Prince

18 George's County, Maryland. The Brandywine coal

19 combustion waste landfill is located in a

20 predominantly African

- American, rural portion of

21 Prince George's County. The facility is 300 acres

22 in size and located in close proximity to the76

1 Patuxent River.

2 The state envir onmental agency, the

3 Maryland Department of the Environment, has

4 documented reports indicating that the facility is

5 discharging very high levels of toxic metals into

6 local surface wate rways. Cadmium is over 100

7 times the recommended groundwater limit, and

8 surface water criteria for aquatic life are

9 significantly exceeded for cadmium and lead.

10 Our organiza tion has brought a citizen

11 enforcement action on behalf of our members to

12 address these federal and state water violations.

13 CCAN staff and members have seen the beautiful

14 marshland and hiked around the threatened Mataponi

15 Creek where these violations are occurring. It is

16 a peaceful place just 15 miles from Washington,

17 D.C.

18 We have a member who has come ou t on

19 record refusing to buy property in Brandywine

20 because of the coal waste facility and what is

21 happening to the water in the area. He was

22 fearful for his family's health and well

- being77

1 because of the facility and decided to move.

2 As part of our enforcement action, we

3 are currently investigat ing whether the surface

4 water contamination has also impacted local

5 groundwater. Most people use well water in this

6 part of the county, so the impacts of groundwater

7 contamination to human health would be disastrous.

8 This is a predominantly blue

- collar rural

9 community that cannot afford to dig new wells or

10 have their water treated if it's contaminated.

11 Th e state of Maryland only deals with

12 coal combustion waste permitting through their

13 Waste Management Department, which is woefully

14 underfunded and inadequate to address this very

15 large and toxic waste stream. In Virginia, there

16 are a number of recorded damage cases to

17 threatened creeks due to coal ash pollution. One

18 particular coal ash landfill in Dumphries County,

19 Virginia, is an unlined, unmonitored facility that

20 has discharged large amounts of heavy metals into

21 our local streams.

22 The Virginia Department of Environmental78

1 Quality also handles these coal ash facilities

2 through their state Waste Management Department

3 which has done a very poor job of regulating. The

4 very composition and nature of coal ash is

5 hazardous, and you will hear plenty of expert

6 testimony today that will prove that fact. This

7 is clear: The EPA should regulate coal ash under

8 Subtitle C of the RCRA.

9 Thank you for the opportunity to submit

10 testimony.

11 MR. DELLINGER: Number 18.

12 MR. THORINGTON: Good morning. I am

13 John Thorington, senior director of Communications

14 and Board Coordination for the Tampa Port

15 Authority which represents the Port of Tampa, the

16 nation's 15th largest cargo port. And on e of the

17 tremendous success stories in our port in the last

18 18 months has been the commencement of a series of

19 shipments of fly ash from Tampa to a green energy

20 hydroelectric dam proje ct in Panama. The contract

21 is slated to total 170,000 tons of fly ash when

22 complete.79

1 In addition, there are nume rous other

2 beneficial use export opportunities throughout

3 this hemisphere for this project. At a time when

4 imported building materials moving through our

5 port have dropped substantial ly due to the

6 construction downturn in our region, the

7 opportunity to significantly enhance beneficial

8 exports through the shipment of fly ash has

9 produced much

- needed positive impacts within our

10 port and our community. In fact, in the 29 years

11 that I've been with the Tampa Port Authority, this

12 project has been one of the most unique commercial

13 ventures that I hav e witnessed. Rarely does a

14 project generate so many benefits across so many

15 levels.

16 The benefits to the Port of Tampa have

17 been previously stated. In addition, vast other

18 benefits accrue from this project. The fly ash

19 being shipped from Tampa comes from a major

20 utility company in our area, and the product being

21 exported would otherwise be delivered to a

22 landfill. If forced to go to a landfill, the80

1 utility cost to our area's ratepayers will rise.

2 Furthermore, this project and other similar

3 projects expected in the future strongly support

4 the President's initiative to double U.S. Exports

5 in the next five years.

6 In addition, using fly ash as an

7 additive and partial replacement for cement in

8 concrete reduces the requirement for mining in our

9 state for substitute products. The recycling of

10 fly ash via export shipments through the Port of

11 Tampa represents innumerable beneficial use

12 applications throughout the hemisphere.

13 These opportunities will vanish if the

14 EPA proceeds with the Subtitle C desig nation in

15 defining coal combustion residues. The hazardous

16 waste designation, even if narrowly applied, will

17 result in a stigma which will undermine the

18 progress made to date and the benefits previously

19 referenced will be lost. In fact, it is my

20 understanding that even just the discussion to

21 date on this issue has raised serious concerns

22 amongst Panamanian citizen s and officials81

1 associated with the hydroelectric dam project in

2 Panama that I referenced earlier.

3 I respectfully urge that the EPA pursues

4 the Subtitle D approach for defining coal

5 combustion residues, and I thank you very much for

6 this opportunity to speak today on this very

7 important issue. T hank you.

8 MR. DELLINGER: Number 18. That was 18?

9 Okay, Number 19.

10 Is Number 19 here? Well, let's do

11 Number 15.

12 MS. STEINZOR: My name is Rena Steinzor.

13 I am a law professor at the University of Maryland

14 School of Law, and president of the Center for

15 Progressive Reform.

16 We are all familiar with the

17 psychological studies that have become a cottage

18 industry at American universities. Consider this

19 one. A dead cockroach is medically sterilized

--

20 and I honestly don't know what that means

- - and

21 then dipped in a glass of juice in front of a

22 group of people. The purpose: To gauge the test82

1 subject's willingness to drink the juice after the

2 cockroach is removed. To the researchers'

3 apparent surprise, the people, all victims of an

4 irrational phenomenon known as "the stigma

5 effect," would not drink the juice although they

6 were willing to take a sip if the cockroach was

7 merely laid to rest peacefully beside the glass as

8 opposed to dunked inside it. As amazing to the

9 researc hers, they refused to drink the dunker

10 juice even if it was placed in a freezer for one

11 year or the cockroach was dipped in the juice

12 very, very quickly. So, conclude the researchers,

13 while shunning may have evolved from an adaptive

14 response to avoid contaminated food, it can be

15 triggered in inappropriate circumstances.

16 Now why on Earth am I bringing up this

17 bizarre experiment in the context of this

18 perfectly staid hearing on a hypertechnical EPA

19 rulemaking proposal which covers

-- count them

--

20 138 pages in the Federal Register leaving many

21 supposedly more relevant points to be addressed by

22 the witnesses today? I am telling you the83

1 cockroach story because it is at the ro ot of the

2 reasons why the OMB Office of Information and

3 Regulatory Affairs mangled this rulemaking,

4 constructing a fanciful but deadly cost

- benefit

5 analysis that predicts negative net benefits of as

6 much as $239 billion if EPA regulates coal ash

7 appropriately as a special waste under Subtitle C.

8 Or, to put it more bluntly, electric

9 utility executives who g enerate 136 million tons

10 of coal ash annually will squander 239 billion of

11 the nation's resources over the next 50 years

12 because, suffering from the cockroach

- proven

13 stigma effect, the y will send millions of tons of

14 the stuff to line landfills rather than dumping it

15 in roadbeds and mine shafts.

16 You'll look in vain for the cockroach

17 study in any of the offi cial documents that emerge

18 from OIRA around the coal ash rule, all of which

19 discussed the stigma effect without citing any

20 references supporting the effect's existence in

21 the coal ash context. But the cockroach study is

22 described at some length in an EPA study on84

1 superfund that was cited at footnote 118 of the

2 original EPA cost

- benefit analysis. And the

3 study is a personal favorite of Cass Sunstein,

4 director of OIRA, who has cited it in Law Review

5 articles and his book Laws of Fear, which argues

6 that irrational people who fear pollution must be

7 saved from themselves.

8 Thank you for considering this

9 commentary on why OIRA has interfered with this

10 rulemakin g and why EPA should regulate coal ash

11 stringently.

12 MR. DELLINGER: Numbers 1, 21, 204, and

13 205. Speaker Number 1?

14 SPEAKER NO. 1: Good morning. I am here

15 this morning speaking on behalf of County

16 Executive John Leopold from Anne Arundel County,

17 Maryland. His testimony:

18 "I strongly support the proposed rule to

19 regul ate the management and disposal of coal ash

20 and coal combustion residuals generated by

21 electric utilities and independent power

22 producers. I further support Options C and D85

1 under the Resource Conservation and Recovery Act

2 to address human health concerns and structural

3 integrity issues associated with coal ash

4 impoundments and landfills.

5 "The disposal of coal ash and coal

6 combustion residuals poses a serious threat to the

7 public health and the environment. Coal

8 combustion re siduals generated by electric

9 utilities and independent power producers contain

10 heavy metals that pose a serious health risk and

11 can adversely affect ground and drinking water

12 supplies

.

13 "An investigation in Anne Arundel

14 County, Maryland, in 2007, identified the presence

15 of heavy metals in groundwater that resulted from

16 the disposal of coal ash and coal com bustion

17 residuals at a sand and gravel surface mine.

18 Arsenic, cadmium, chromium, aluminum, thallium,

19 and beryllium were identified in groundwater and

20 directly affected off

- site private wells and

21 drinking water supplies.

22 "The disposal of coal combustion86

1 residuals caused significant public health a nd

2 environmental concerns in Anne Arundel County,

3 Maryland, ranging from contamination of

4 groundwater, nuisances from airborne dust, and

5 adverse effects on private drinking water

6 supplies. In 2007, 2008, and again in 2009, the

7 county executive secured County Council approval

8 of legislation he proposed to ban the disposal of

9 coal ash and other coal combustion residu als in

10 Anne Arundel County, Maryland. He continues to

11 support this legislation and has great concern for

12 the management and disposal of this material at

13 landfills and service impoundm ents on a national

14 level.

15 "He strongly supports the development of

16 a state and federal permit program as proposed

17 under Subtitle C which provides the minimum level

18 of protection necessarily to protect public health

19 and the environment. The classification of coal

20 ash and coal combustion residuals as a special

21 waste under the Resource Conservation and Recov ery

22 Act will ensure the necessary regulatory oversight87

1 will be in place to adequately address the

2 storage, manifest, transp ortation, and disposal of

3 coal ash and coal combustion residuals. This

4 option also requires the installation of liners

5 and groundwater monitoring at new landfills and

6 provides the gre atest benefit to protect human

7 health, the environment, and our limited

8 resources.

9 "The requirements proposed in Option D

10 provide additional measures to protect public

11 health and the environment through retrofitting

12 existing surface impoundments with liners and

13 through improvements in the structural integrity

14 of existing surface impoundments. These measur es

15 will further reduce the risk of surface

16 impoundment failure and provide the added

17 protection to human health, surface and drinking

18 water supplies, and our limited water resources."

19 The county executive wants me to note

20 that there is a flaw with the proposed rule in

21 that it does not address exposure to fly ash from

22 fugitive dust. Maryland is among the 42 states

--88

1 MR. DELLINGER: Your time limit is up.

2 SPEAKER NO. 1: Can I finish? I have

3 just a little bit.

4 MR. DELLINGER: Real quick.

5 SPEAKER NO. 1: Pardon me?

6 MR. DELLINGER: Real quick.

7 SPEAKER NO. 1: Okay. As this matter is

8 of great urgency to the citizens of Anne Arundel

9 County, the county executive strongly supports

10 options Subtitle C and D under the proposed rule.

11 Thank you.

12 MR. DELLINGER : Number 21.

13 MR. BORDERS: Hello. My name is John

14 Borders. I'm president of the Titan America

15 Separation Technologies' Business Unit, and I want

16 to thank you for the oppor tunity to participate in

17 what I think are incredibly important hearings.

18 I'm here to ask for thoughtful action

19 that avoids confusion and puts ash where it

20 belongs: In concre te and not in landfills. It's

21 become obvious that this has become a very

22 important and public issue to everyday people,89

1 mo st of whom didn't now what fly ash was just a

2 few short months ago. And education must be a

3 very important part of what we do here in order to

4 understand the benefit, a benefit that is, if we

5 can somehow manage to utilize problem

- solving

6 techniques and failure mode analysis and real

7 science in order to reach a conclusion, a

8 conclusion without that process most generally, in

9 our world of today

-- and I think that's pretty

10 obvious

-- becomes a stimulus program for legal

11 professionals and job security for those who seek

12 to impose political agendas on both sides of the

13 argument.

14 I need to tell you briefly why I'm

15 compelled to be here, and I hope you find my

16 personal comments relevant to the situation. And

17 while I am a concrete industry spokesperson here,

18 I have chosen to be a life member of the Sierra

19 Club and I'm actively involved.

20 In 40 years of professional association,

21 I've had the o pportunity to lead national and

22 international concrete specification and business90

1 development work with architects, engineers,

2 concrete producers, concrete suppliers, and people

3 who work in that science. For the past seven

4 years, I've been president of Separation

5 Technologies, which is a Titan America business

6 unit that processes fly ash into two separate

7 components, quality controlled components that

8 make concrete better and eliminate the need for

9 landfills. During that effort, we've invested

10 more than $100 million to make it the best we can

11 make it, and now doing business up and down the

12 East Coast as well as in four other countries,

13 including the latest start

- up in Poland.

14 Our proprietary solutions process

15 literally hundreds of millions of tons of this

16 with no harm, with good, and that good is to keep

17 the fly ash making concrete better. And while t he

18 numbers of technology patents that we have, have

19 increased markedly, what we really do is create

20 jobs, good jobs, green jobs, jobs that I don't

21 have to tell you will go away if ther e is

22 confusion in what the EPA does.91

1 In my opinion, if regulation or

2 legislation, no matter how well

- intended, is

3 imposed by the federal government, the content

4 which allows confusion to exist in what is

5 hazardous and what is not, the beneficial use of

6 fly ash in concrete products will, in fact,

7 greatly diminish over the next few months.

8 Fly ash aside, the CO2 is an issue and

9 jobs are an issue, and, yes, the cost of utilities

10 and the cost of electricity is important. It's

11 not just that ST is a green technology company and

12 it will lose jobs. We'll move our operation

13 overseas. It's obvious to me that neither ash nor

14 EPA is a four

- letter word, cer tainly not in

15 intent. And if you want to really help the

16 environment

, the economy, even security, use your

17 influence to replace more Portland cement with fly

18 ash, not less. Don't i ntentionally, negatively

19 impact one of the most successful examples of

20 recycling in history. Contrary to what I learned

21 in school, I would like a D, not a C.

22 MR. DELLINGER: Thank you. Number 204.92

1 Number 205.

2 MR. BRINKLEY: Good morning. My name is

3 Dave Brinkley. I'm the director of distribution

4 for Roanoke Cement. I also manage their outbound

5 trucking operations as well as their customer

6 service functions. Typically, on a weekly basis

7 we take up to 500 orders, truckload orders of fly

8 ash every week to go into beneficial use. It's

9 the job of my department and the people within our

10 department to make sure that that fly ash gets

11 safety to its destination and that it subsequently

12 ends up in beneficial use.

13 My point here this morning is that

14 Subtitle C will have a stigma on the beneficial

15 uses of fly ash. I want t o read a section from

16 the statement that you guys put out this morning.

17 It's actually on page 2 of the handouts.

18 It says, "Large quantities of coal ash

19 are used today in conc rete cement, wallboard, and

20 other contained applications that should not

21 involve any exposure by the public to unsafe

22 contaminants." And then it goes on to say, "These93

1 uses would not be impacted by today's proposal."

2 Subtitle C would impact the beneficial use of fly

3 ash in concrete.

4 Today we coo rdinate about 500 truckloads

5 of delivery each week. As a truck picks up at a

6 power plant it either goes to a landfill, and we

7 are big advocates that those landfills are

8 properly contr olled, but those same truck drivers

9 also take that product to concrete plants for

10 beneficial use. How can an individual like a

11 driver pick up fly ash and go one direction with

12 it and it be classified as hazardous, and then go

13 another direction and it not be classified as

14 hazardous? It doesn't make sense and it will

15 create a stigma on the beneficial use of fly ash.

16 Thank you for your time.

17 MR. DELLINGER: Numbers 22, 23, 24, and

18 25.

19 MR. THERNSTROM: Good morning. My name

20 is

-- thank you for the opportunity to speak

21 today. My name is Sam Thernstrom, and I'm senior

22 climate policy advisor at the Clean Air Task94

1 Force, a Boston

- based nonpr ofit organization

2 dedicated to reducing atmospheric pollution

3 through research advocacy and private sector

4 collaboration.

5 One of the initiatives I work on at CATF

6 is what we call our coal transition project, and I

7 should explain what we mean by a coal transition.

8 Unlike some, we do not assume that Americans will

9 stop using substantial amounts of coal in th e next

10 few decades, and, unfortunately, we don't think

11 that's a realistic aspiration. But we believe we

12 can and must transition to a world in which coal's

13 environmental and social cos ts are addressed in a

14 comprehensive modern framework of federal

15 regulations. Doing so will ensure that coal could

16 continue to provide a substantial fraction of

17 America's electric powe r while reducing it's

18 profound environmental and human costs.

19 CATF's main mission is to reduce air

20 pollution from coal

- fired power plants, and we are

21 very proud of the progre ss America has made in

22 that regard. This fall CATF will issue a report95

1 documenting dramatic reductions in air pollution

2 ov er the last 5 years due to the installation of

3 new scrubbers on 130 power plants, but as is often

4 the case, progress in one area requires

5 reinforcement to prevent backsliding in others.

6 Every ton of pollution captured by smokestack

7 scrubbers is a ton less of air pollution and a ton

8 more of hazardous waste that threatens land and

9 water resources if not disposed of properly.

10 Coal contains a witch's brew of toxic

11 pollutants which combustion either releases to the

12 air or leaves behind in the ash. While we

13 celebrate progress in cleaning the air, we must

14 redouble our efforts to keep these pollutants from

15 contaminating our land and water. We expect

16 America's power generators to further reduce air

17 pollution in the future and, consequently, to

18 generate even larger quantities of hazardous

19 waste.

20 Two years ago, the Tennessee Valley

21 Authority's catastrophic coal ash spill

22 dramatically illustrated the consequences of our96

1 failure to provide adequate safeguards for coal

2 ash disposal. Disasters easily capture our

3 attent ion, but the daily dangers of living near

4 coal ash impoundments go largely unnoticed. In my

5 20 years of experience working with and studying

6 America's environmental laws and policies, I am

7 hard

- pressed to think of a more egregiously

8 inadequate and antiquated regulatory scheme or,

9 more precisely, the absence of one. The fact that

10 the federal government in the 21st century still

11 regulates coal ash as if it were less dangerous

12 than household garbage simply defies

13 comprehension.

14 CATF strongly urges you to regulate coal

15 ash as a special wa ste under Subtitle C of the

16 Resource Conservation Recovery Act. This would

17 give EPA the authority to enforce comprehensive

18 regulations for coal ash and the flexibility to

19 consider the waste's special characteristics. In

20 order to protect public health and the

21 environment, EPA must regulate disposal of these

22 hazardous wastes under Subtitle C of RCRA.97

1 Thank you for your attention to this

2 matter.

3 MR. DELLINGER: Number 23.

4 MR. RAMSEY: My name is Boyd Ramsey, GSC

5 Lining Technology LLC, a privately held company in

6 Houston, Texas. Today I'm representing the

7 Geosynthetic Materials Association, a trade group

8 of 80 companies that manufacture, distribute, and

9 install geosynthetic materials, including lining

10 systems. The industry employs 12,000 people

11 throughout the United States.

12 Our comment to EPA is very simple: We

13 request the EPA mandate the geosynthetic lining of

14 coal ash storage facilities using composite lining

15 systems. In the shortest terms, use liners,

16 specifically composite liners. Why? Because

17 liners work. Concerns of safety regarding CCRs

18 are mitigated if landfill storage sites are lined

19 with a composite lining system of a geomembrane

20 and a geosynthetic clay liner. A composite lining

21 system prevents leachate from entering the

22 groundwater. Safety concerns regarding surface98

1 impou ndments are also mitigated if the

2 impoundments are lined with a composite lining

3 system.

4 The American Society of Civil Engineers

5 does a regular report card on America's

6 infrastructure. For the last three report cards,

7 representing over a decade, solid waste has

8 received the highest grade of any category. My

9 industry does a good job of taking America's wa ste

10 and properly storing it to protect the

11 environment. The materials, technology, and

12 people exist: the engineers, engineering

13 standards, the general contractors and installers

14 who can build the proper facilities, and the

15 regulators and inspectors who assure that work is

16 done correctly. We urge the EPA to use what works

17 and is working today.

18 Further, our industry has continuously

19 improved over time, and EPA has been a part of

20 that effort. Over the years EPA has commissioned

21 nearly 80 studies on the design and performance of

22 lining systems. We specifically call your99

1 attention to a 2002 study titled Assessment and

2 Recommendations for the Optimal Performa nce of

3 Waste Containment Systems. That study contains a

4 great deal of pertinent information on how to

5 construct containment systems.

6 Most illustrative for today is a graph

7 charting the leakage rate of various designs over

8 the life cycle of nearly 200 facilities. The

9 composite lining system

-- that's the line in red

10

-- of a geomembrane and a geosynthetic clay liner

11 was demonstrated to have the lowest leakage rate

12 over all life cycle stages, including a near zero

13 leakage rate after the facilities are closed and

14 final cover is placed. O ur materials work. The

15 use of a composite lining system will achieve the

16 EPA mission to protect human health and the

17 environment for all Americans.

18 A brief word on the

19 hazardous/nonhazardous question. While coal ash

20 does contain heavy metals, it lacks the

21 traditional characteristics of hazardous

22 materials: Radioactivity, the presence of100

1 infectious medical waste, et cetera. In the

2 opinion of our trade organization, coal ash can be

3 properly stored using Subtitle D regulation s, a

4 nonhazardous solid waste designation, and

5 composite lining systems. Thank you.

6 MR. DELLINGER: Number 24.

7 MR. PICA: Good morning. My name is

8 Eric Pica, and I'm the president of Friends of the

9 Earth, United States. Friends of the Earth is a

10 national environmental advocacy organization and

11 seeks to champion a just and healthy world. We

12 are also member of Friends of the Earth,

13 International, the world's largest federation of

14 grassroots environmental groups in 77 countries

15 around the world. And today I'm representing ou r

16 100,000 members and activists across the country.

17 I want to begin by thanking the

18 Environmental Protection Agency for conducting

19 hearings on the issue of regulating and the

20 control of dangerous waste ash generated from

21 burning coal. We will submit detailed written

22 comments, but we wanted to testify in person to101

1 support our activists and communities around the

2 country that want to see an end to unregulated

3 disposal of toxic coal ash.

4 Around the country today there are more

5 than 431 disposal sites for coal ash. Our members

6 and supporters live near these facilities. The

7 coal ash at these sites contain a toxic soup of

8 chemicals, including arsenic , cadmium, chromium,

9 lead, selenium, and others which have been linked

10 to cancer, organ disease, respiratory illnesses,

11 neurological damage, and reproductive and

12 developmental problems

.

13 Forty

- nine of these sites have been

14 listed by the Environmental Protection Agency as

15 high

- hazard potential. Every year more than 130

16 million tons of coal ash is being adde d to these

17 sites. This is enough to fill train cars from the

18 North Pole to the South Pole. As we recently

19 witnessed with the Tennessee Valley Authority,

20 there is a lack of federal en forceable standards.

21 In 2008, a dam holding more than 1 billion gallons

22 of toxic coal ash sludge failed, destroying 300102

1 acr es, dozens of homes, killing fish and other

2 wildlife, and poisoning the Emory and Clinch

3 rivers. Fortunately, nobody was killed.

4 In addition to the risk of catastrophic

5 fail ure from the TVA dam, communities around coal

6 ash sites are suffering a slower, more insidious

7 fate. People living near unlined coal ash ponds

8 where water is contaminated by arsenic and ash is

9 mixed with coal refuse have extremely high rates

10 of cancer: Up to 1 in 50. This is 2,000 times

11 greater than EPA's accepted cancer risks.

12 It's time the EPA begin regulating coal

13 ash as a toxic pollutant. Coal ash must be

14 regulated under Subtitle C of the Resource

15 Conservation Recovery Act as a special waste with

16 all the safeguards that apply. Federally

17 enforceable standards must ensure coal ash dumps

18 and waste ponds have all the protections presently

19 required at household wasteland fills, including

20 sold waste permits, liners, monitoring sys tems,

21 collection systems, corrective actions, financial

22 assurances, fugitive dust suppression, and103

1 transport controls. Onl y Subtitle C requires

2 this.

3 For the health of communities in the

4 environment located near these 431 coal ash

5 disposal sites, it's imperative that EPA use the

6 strictest regulatory framework at its disposal,

7 and requiring Subtitle C of the Resource

8 Conservation Recovery Act is this regulatory

9 framework. Thank you.

10 MR. DELLINGER: Number 25.

11 MR. GRAY: Good morning. My name is

12 Danny Gray. I'm executive vice

- president of

13 Charah, Incorporated, and I have over 30 years'

14 experience in the coal combustio n products

15 management industry. And I'm testifying today on

16 behalf of Charah.

17 Charah's a 23

- year

- old company. It

18 specializes in the management of coal combustion

19 residues. Charah employs over 225 people in 11

20 states, all dedicated to responsible management of

21 CCRs. Our company is very active in the recycling

22 of coal combustion products that are derived from104

1 coal ash. We have invested substantial efforts

2 and capital in expanding the beneficial use of

3 CCPs, and we look forw ard to continued growth in

4 one of the most successful recycling industries

5 that operates in the United States.

6 A successful recycling program provides

7 tremendous benefits for the environment and

8 improvements to construction materials, which are

9 acknowledged by the scientific community, the

10 construction industry, and EPA. Charah supports

11 EPA's efforts to i mplement regulations to avoid

12 structural failures of impoundments and require

13 added safeguards for design and operation of CCR

14 receiving ponds and landfills.

15 We believe that the protective features

16 are appropriate under Subtitle D and will provide

17

-- and that will provide for disposal of CCRs in a

18 manner that is consistent with the nature of the

19 CCR materi als requiring disposal.

20 We take particular note of the fact that

21 the environmental protective features proposed

22 under the CCR landfills under Subtitle C, a105

1 regulation approach, and the Subtitle D alternates

2 are essentially the same. Therefore, we believe

3 that a Subtitle D regulatory program provides the

4 necessary protection and is the only choice that

5 will avoid damage to the recycling industry.

6 Maintaining the success of the CCP

7 recycling industry is in the best interest of all

8 members of our society. We do not believe that

9 regulation of CCRs under Subtitle C can occur

10 without damaging the recycling industry. We as a

11 company have already experienced customer lo ss

12 associated with the proliferation of news coverage

13 inappropriately referring to coal ash as a

14 hazardous or toxic material. Our experience with

15 the stigma impacts of the proposed la beling of CCR

16 as a special waste under Subtitle C indicates that

17 recycling will decrease the valuable resources

--

18 will decrease recycling and valuable resources

19 will be disposed of in stead of beneficially used

20 to save virgin materials. EPA's assumption that

21 Subtitle C will result in an increase in

22 beneficial use is contrary to our experience.106

1 In summary, our company has been

2 involved in the management of CCRs and the

3 beneficial use of CCPs for many years. The

4 proposed regul ations under C and D essentially

5 have the same protective features for disposal.

6 Therefore, we believe that taking the risk to

7 damage the CCP recycling beneficial use industry

8 from a S ubtitle C approach is not warranted.

9 As for the impact of stigma, we

-- I can

10 tell you firsthand that in the loss of customers

11 who've said they would love to use our material,

12 it makes their products better, but they have to

13 switch because of the hazardous labeling. Thank

14 you.

15 MR. DELLINGER: Numbers 26, 27, 28, and

16 29. Number 26.

17 MS. WILLIAMSON: Good morning. My name

18 is Barbara Williamson. I'm the general secretary

19 for Social Justice and Environmental

-- Social and

20 Environmental Justice for the Earthcare Witnes s of

21 the Americas for the Religious Society of Friends.

22 I first became aware of the problem of107

1 coal ash when I re ad an EPA report that told me

2 that 48 percent of coal ash dump sites had

3 contamination that had moved off

- site and

4 poisoned streams and drinking water. In the

5 Appalachian Mountains w here I grew up, sites have

6 been known

-- have been shown to have water travel

7 at least a mile to contaminate streams and

8 drinking water wells.

9 The EPA admits that lack of mon itoring

10 and

-- has meant that there are some sites that

11 are not monitored. And I think none of us should

12 forget Pines, Indiana, where using coal ash for

13 road projects contaminated the drinking wells in

14 that town and turned that town into a Superfund

15 site.

16 The public needs to be involved in a

17 permitting process for the siting and operation of

1 8 coal ash disposal facilities. In addition,

19 regulation

-- regulatory mandates to assure that

20 facilities comply with standards requirements that

21 would prevent pollution before it occurs rather

22 than undertaking expensive cleanups after major108

1 damage has occurred.

2 In addition, we need for

-- and I have a

3 list of things that we would like to see

-- states

4 to adopt and implement rules at the same level as

5 the EPA; coal ash be treated as a hazardous waste;

6 there to be requirements for every stag e of

7 handling coal ash from generation to post

-

8 closure, including management and storage with

9 consistent minimum remediation standards.

10 But we'd like for the state and EPA

11 monitoring all enforced, cleanup of all releases

12 for active and closed landfills and ponds

13 facilities, the whole facility, each individual

14 facility.

15 We would like bonding that is large

16 enough to cover all the cost of closing

17 facilities, conducting cleanup, and compensate any

18 injured

-- or injury to third

- party

--

19 third

- person parties, bas ic standards for new

20 landfills including liners, water runoff controls,

21 groundwater monitoring, leachate collection

22 systems, fugitive dust controls, closure, and past109

1 closure care

-- post

- closure care.

2 Thank you for your time. I appreciate

3 your giving me the opportunity to talk today.

4 Thank you.

5 MR. DELLINGER: Thank you. Number 27.

6 MS. FAGGERT: Good morning. My name is

7 Pam Faggert, and I'm vice president and chief

8 environmental officer for Dominion Res ources, and

9 I'm testifying today on behalf of the Utility

10 Solid Waste Activities Group, or USWAG. USWAG is

11 an association of over 100 electric utilities and

12 trade associations and has been working

13 cooperatively with EPA for close to three decades

14 regarding the Agency's implementation of the

15 Bevill amendment for coal combustion residuals, or

16 CCRs. USWAG's members w ill be directly impacted

17 by the final CCR rule, and I very much appreciate

18 the opportunity to speak today on the proposal.

19 Let me say at the outset that USWAG

20 favors the deve lopment of federal regulations for

21 CCRs under RCRA Subtitle D, nonhazardous waste

22 program. The question for us is not whether to110

1 regulate, but how to regulate. We have evaluated

2 the alternatives and believe that the Subtitle D

3 prime option is the best path forward. Unlike the

4 Subtitle C approach, D prime will establish a

5 robust and environmentally protective program for

6 coal ash disposal units without crippling coal ash

7 beneficial use and imposing unnecessary regulatory

8 costs on power plants, threaten ing jobs, and

9 increasing electricity costs. USWAG shares the

10 EPA's objective of having a regulatory program

11 that ensures the safe disposal of CCRs and the D

12 prime option will meet thi s objective.

13 One of the elements of the D prime

14 option that makes it the preferred option is that

15 it would not require the automatic closure of CCR

16 surface impoundments that are operating in a

17 manner that is fully protective of human health

18 and the environment. We agree that disposal units

19 that are not fully protective must either be

20 upgraded or closed. However, there are many CCR

21 surface impoundments which are perfectly safe.

22 There is no reason why these units should not be111

1 allowed to continue operating.

2 A major shortcoming, however, of the

3 Subtitle D and D prime approach is the lack of any

4 mechanism for the states to step in and administer

5 the regulations. Where state regulatory programs

6 meet or exceed the EPA proposed Subtitle D

7 standards, it makes no sense to not allow these

8 qualified state programs to administer the federal

9 Subtitle D rules.

10 We also have some serious concerns with

11 the accelerated closure in the Subtitle D option

12 that we will discuss in our written comments.

13 Finall y, I want to touch briefly on our

14 opposition to Subtitle C. We agree with the views

15 of a bipartisan group of 165 members of Congress,

16 45 U.S. Senators, and virtually all the states

17 t hat believe that regulating CCRs under RCRA's

18 hazardous waste program is simply regulatory

19 overkill and, in fact, would be counterproductive

20 because it would cripple the CCR beneficial use

21 industry. There is simply no reason to pursue

22 this approach when the Subtitle D prime option112

1 offers the same degree of protection witho ut the

2 attendant risks and burdens of Subtitle C.

3 Thank you very much.

4 MR. DELLINGER: Number 28.

5 MR. TOLMAN: Good morning. My name is

6 Chad Tolman. I'm the energy chair of the Delaware

7 Chapter of the Sierra Club. My particular

8 interest is climate change and sea level rise, and

9 I'd like to have you think about a problem you may

10 not have thought of.

11 For many years, many coal

- burning power

12 plants have been allowed to dispose of coal

13 combustion residuals as they saw fit even though

14 it's be en known for a long time that these wastes

15 contain toxic heavy elements. They can be leached

16 from waste piles to contaminate streams and

17 groundwater. The size of the problem is immense

18 since U.S. Power plants consume about a billion

19 tons of coal annually and produce over 130 million

20 tons of CCR each year. Because power plants that

21 burn coal require cooling water to condense steam

22 after it's gone through power

- generating turbines,113

1 plants are often located close to rivers, tidal

2 basins, or coasts where cooling water is readily

3 available.

4 Though some of the CCR has been sold for

5 commercial use, for example in concrete on

6 highways, much of it has been simply dumped near

7 power plants, often without liners or impermeable

8 covers to prevent leaching. In the case of

9 Delaware, the largest power plant in the state

10 burns powdered coal and it's located near the

11 tidal Indian River, part of the state system of

12 inland bays.

13 My concern is not only about the toxic

14 heavy elements that are already leaching into the

15 river, but what will happen in the future as sea

16 levels rise and storm surges cause waves to

17 overtop the waste piles, potentially washing much

18 of their contents into the river and bays? I

19 su spect that this problem is not unique to

20 Delaware.

21 We don't have good models for how far

22 and how fast sea level will rise as we keep adding114

1 greenhouse gases to the atmosphere. The most

2 recent estimates I've seen of sea level rise

3 expect up to two meters, or six feet, by 2100.

4 The paleoclimate re cords shows that rates as high

5 as 5 meters per century have occurred with the

6 sensitivity of sea level rise to global average

7 temperature at equilibrium of 20 meters to degree

8 centigra de.

9 Policymakers have proposed keeping the

10 global average temperature increase to 2 degrees

11 since

-- above what it was at the beginning of the

12 Industrial Revolution, but targ et appears

13 increasingly unlikely to be met. We're already at

14 390 parts per million increasing by more than 2

15 parts per million per year, and in order to keep

16 the temperature rise belo w 2 degrees, you'd

17 probably have to go back to 350.

18 Thus it seems to me that CCR from

19 electrical utilities should not only be listed as

20 special waste under Schedule C of RCRA , but those

21 anywhere near sea level should be moved inland to

22 higher elevations, at least 40 to 50 meters above115

1 current sea level, and should be stored in a

2 manner that prevents leaching of their toxic

3 elements for long periods of time. These costs

4 should be borne by the utilities that have created

5 the pr oblem and not by American taxpayers.

6 And I'll submit my written comments.

7 Thank you.

8 MR. DELLINGER: Thank you. Number 29.

9 MR. TUTTLE: Good morning. Th ank you

10 for having this hearing. My name is Steve Tuttle,

11 and I'm a resident of Alexandria, Virginia.

12 Five hundred years ago, the land, air,

13 and water were so much cleaner. Why do we as

14 humans have to destroy what is around us? Coal

15 ash dumps similar to Mirant's Potomac River Power

16 Plant, leach arsenic and lead and mercury into our

17 water. In Maryland, three major coal ash leak

18 sites belong to the Mirant Corporation. Why don't

19 people who make a mess clean it up? Coal

20 companies have done so much damage to the

21 environment and no one holds them accountable. In

22 the past, they have polluted the water and116

1 destroyed mountains.

2 I support Subtitle C and

-- because that

3 would give you, the EPA, the ability to enforce

4 uniform federal standards and coal ash could then

5 be regulated as a hazardous waste that it is. It

6 is my job to tak e care of my health and it is

7 cheaper to stay healthy. But I have to breathe

8 the air here. I wish it was cleaner. We must do

9 a better job and not allow heavy metals to leach

10 into ou r water supplies. It is so expensive to

11 try to clean that up.

12 The business model for Mirant appears to

13 be create energy from coal by spending the least

14 amount of money. The industry standard should be

15 who can do the least amount of damage to the

16 environment and make energy while they clean up

17 the mess they make. Please help the coal industry

18 learn to be responsible so we all can live in a

19 less polluted area. Thank you very much.

20 MR. DELLINGER: Numbers 30, 31, 32, and

21 33.

22 MR. DIEDRICH: I guess it's still117

1 morning, good morning. Roger Diedrich. I thank

2 you for the time to speak today on this issue.

3 I'm a resident of Fairfax, Virgini a, and retired

4 from the Department of Energy. Although I have

5 not looked closely at coal ash during my career at

6 DOE, I'm familiar with the Resource Conservation

7 Recovery Act, Subtitl e C and D, having worked on

8 solid waste issues as a volunteer on a county

9 advisory committee for several years.

10 I would urge you to regulate coal ash

11 under Subtitle C, that i s as a toxic substance,

12 because that will provide the framework to cover

13 several important issues. These include adequate

14 requirements for liners, groundwater monitoring,

15 testing, and post

- closure care. I was engaged

16 when we had the debate over how you would regulate

17 incinerator ash. And ultimately, it came down to

18 what a proven testing regime would show. In some

19 cases that meant that ash had to be handled as a

20 hazardous material.

21 The regulation should be science

- based,

22 and I am confident the science will show that the118

1 coal ash contains many highly toxic substances at

2 levels that are a danger to human health and the

3 environment. I'm also concerned about the

4 prospect of defining beneficial uses which the

5 regulations might allow. In particular, one use

6 that seems attractive for coal generators is to

7 dispose them in roadbeds. This is a sought

- after

8 use because, number one, a lot of ash can be

9 disposed that way. And, number two, a part of the

10 process, that is the cover, would be covered under

11 another budget.

12 Unfortunately, we know that lately many

13 states are broke, and so they cannot maintain

14 roads and perhaps in rural areas are removing the

15 paving when it deteriorates. What if such a road

16 had been built with the coal ash and now the toxic

17 substances were to disperse into the general

18 environment?

19 We have seen too many examples recently

20 where a lax regula tory environment has had serious

21 consequences, and so I urge you to be

22 conservative, which means to impose restrictive119

1 cont rols on coal ash disposal. Thank you.

2 MR. DELLINGER: Number 31.

3 MR. HOWLEY: Good morning. My name is

4 John Howley, and I am editor of Maryland Energy

5 Report, an independent voice for energy users.

6 Maryland is in the middle of transforming its

7 coal

- fired power generation sector, and this will

8 mean big improvements in air quality. The 2006

9 Heal thy Air Act will significantly reduce NOCs,

10 SOCs, and mercury emissions by 2013. Meanwhile,

11 Maryland has new regulations on the disposal of

12 toxic CCRs which took effect at the end of 2008.

1 3 The new regulations require annual reports from

14 CCR generators. These reports could provide EPA

15 with a useful case study to inform projections of

16 the ratios of CCRs to tons of coal burn.

17 According to MDE, in 2008, about 2

18 million tons of coal ash was generated from

19 Maryland plants. Maryland projects that in 2010,

20 when scrubbers are fully operational, an

2 1 additional 2.5 million tons of scrubber sludge

22 will be generated each year. This suggests that120

1 the nationwide increase in CCRs resulti ng from

2 better air quality controls may be even faster

3 than EPA projects. The MDE report throws light on

4 another issue EPA should take note of: Interstate

5 transport of CCRs. Generat or reports for 2009

6 show that more than half of the CCRs generated

7 were transported out of state for disposal going

8 to landfills, minefills, as well as manufacturing

9 plants.

10 Please note that these figures do not

11 yet include any scrub or sludge. Unless new

12 permitted landfills or processing capacity is put

13 in place quickly, it is likely that much of the

14 additional 2.5 million tons of scrubber sludge

15 predicted by MDE will also be exported from the

16 state. One county in Maryland has completely

17 banned the disposal of CCRs. In the absence o f

18 strong nationwide regulatory structure, it is

19 reasonable to assume that as individual states

20 improve their own regulations, toxic coal

21 combustion waste may flow across state lines in

22 increasing amounts, as the TVA

- Kingston disaster121

1 shows, where wastes were exported from Tennessee

2 to Alabama.

3 While Maryland's rate of export may or

4 may not be representative, it should serve as a

5 reminder that toxic CCRs do move across state

6 lines and will likely do so in higher volume in

7 years to come.

8 The three factors

-- the growing

9 discrepancy in the patchwork of state

- level CCR

10 regulation; a more rapid than expected increase in

11 toxic CCRs; an d the possibility of growing

12 interstate movement

-- make it imperative that EPA

13 put in place an effective federal framework as

14 quickly as possible. Each day of further delay by

15 EPA si mply increases the health and economic

16 burden on our children and grandchildren who will

17 live with the consequences of this generation's

18 inaction. Promulgation of Subtitle C's special

19 waste option is a long overdue first step towards

20 protecting the health of Americans from the

21 hazards of toxic CCRs. Thank you.

22 MR. DELLINGER: Number 32.122

1 PROFESSOR LOCKWOOD: Good morning. My

2 name is Alan Lockwood, and I'm a tenured professor

3 of neurology at the University at Buffalo. I'm

4 here to represent Physicians for Social

5 Responsibility, 50,000 members and E

- activists.

6 Each year coal

- fired utilities create

7 and dispose of over 120 million tons of coal

8 combustion residues. Ironically, as air pollution

9 control technologies improve, this huge waste

10 stream becomes increasingly hazardous as toxicants

11 such as arsenic, selenium, and many others that

12 had been released into the air and become a part

13 of the CCR waste stream. If CCRs stayed put, the

14 problem we face would be much simpler. However,

15 many of these toxicants leach into dr inking water

16 supplies, our waterways, into the air as dust, et

17 cetera, and harm the health of those who are

18 exposed. Several disposal sites are so toxic they

19 have been added to the na tional priorities list.

20 Time does not permit me to present the

21 details of this complex problem, so I will focus

22 my comments on arsenic and selenium, two critical123

1 constituents of CCR. Arsenic is a known

2 carcinogen that causes cancers of the skin, lung,

3 and urinary bladder. Arsenic and CCR placed in

4 surface impoundments creates the greatest risk for

5 the development of cancer. The cancer risk for

6 individuals at the 50th percentile of exposure is

7 increased by a factor of about 30. Unlined and

8 clay

- lined disposal sites have lower but still

9 appreciable risks.

10 Leaching of arsenic and other CCR toxins

11 has forced the shutdown of water supplies and

12 town s such as the town of Pines, Indiana.

13 Exposure to arsenic also increases the risk of

14 developing Type 2 diabetes mellitus. As many of

15 you know, Americans are experiencing an epidemic

16 o f this largely preventable, devastating, and

17 expensive disease.

18 CCR also contains significant amounts of

19 selenium. The EPA's own analysis has demonstrated

20 clearly that selen ium from CCR disposal sites has

21 devastated fish populations and resulted in fish

22 consumption advisories. For example, Devil's124

1 Lick, North Carolina, selenium eliminated 16 out

2 of 20 species of fish and led the Fish Consumption

3 Advisory that was in effect for 7 years.

4 These are but a few of the numerous,

5 well

- studied, and proven instances of CCR

6 damages. Other examples include the highly

7 publicized collapse of a dam that contained CCR in

8 Kingston, Tennessee, that led to the discharge of

9 about 1 billion gallons of toxic slurry into

10 adjacent waterways.

11 In 2009, EPA's sponsored survey showed

12 that there were at least 50 CCR storage ponds that

13 posed a significant high risk for failure.

14 Seventy

- five of all of the impoundments were

15 behind dams that were more than 50 feet high, thus

16 too many CCR repositories have the potential to

17 caus e additional, perhaps catastrophic, effects on

18 health and the environment.

19 On behalf of our members and all

20 Americans, PSR urges the EPA to adopt the measures

21 for regulating CCR described in Subtitle C so that

22 the Agency can best fulfill its mission to protect125

1 health and the environment.

2 Thank you for this opportunity.

3 MR. DELLINGER: Number 33.

4 MS. CLEMENT: My name is Audrey Clement.

5 I'm co

- chair of the Green Party of Virginia.

6 The iss ue before the EPA is whether to

7 adopt a regulation classifying coal ash as a RCRA

8 Subtitle C hazardous waste or a Subtitle D solid

9 waste, i.e., household garbage. According to OMB

10 Wat ch, EPA faces this dilemma only because the

11 White House Office of Information and Regulatory

12 Affairs rewrote the EPA rule proposing to regulate

13 coal ash as a hazardous waste after secret

14 meetings with the coal and utility industry

15 flacks.

16 The White House did industry's bidding

17 by presenting a solid waste designation as a

18 reasonable compromise between meani ngful

19 regulation and no regulation at all. While

20 politically expedient, designating coal ash as a

21 household waste is imprudent. Those who make

22 money selling coal ash for so

- called be neficial126

1 reuse argue that coal ash is no more harmful than

2 dirt, yet it is known that coal ash concentrates

3 the pollutants in coal 10

- fold. According to

4 Wikipedia, approximately 10 percent of the mass of

5 coal burned in the United States consists of

6 unburnable mineral material that becomes ash, so

7 the conc entration of most trace elements in coal

8 ash is approximately 10 times the concentration in

9 the original coal.

10 Secondly, coal ash contains harmful

11 particulates silica and lim e. Silica has been

12 linked to silicosis and lime with lung damage due

13 to its high alkali pH. Because of the hazardous

14 particulate nature of coal ash, workers installing

15 it as a soil s tabilizer at a Chesapeake, Virginia,

16 golf course in 2004 were told to wear respirators

17 and gloves. It stands to reason that if handling

18 a substance requires protective measures, the

19 s ubstance itself must be hazardous. Certainly,

20 this is the position EPA has taken regarding a

21 host of other pollutants including lead, mercury,

22 and asbestos. Why should coal ash be treated any127

1 differently except that selling it is profitable

2 to utilities?

3 Finally, regulating coal ash as solid

4 wa ste is voluntary and, therefore, unenforceable.

5 According to a coal ash proposed

- rule summary put

6 out by Earthjustice, EIP, NRDC, Sierra Club, and

7 the Southern Environmental Law Center, "EPA cannot

8 require that states issue solid waste permits

9 under the Subtitle D option. Permits are the

10 prime enforcement tool of state and federal

11 regulatory agencies and are the only mechanism for

12 meaningful public involvement in citing an

13 operation of disposal facilities.

14 "Furthermore, requiring facilities to

15 comply with standard permit requirements would

16 allow agencies with citizen involvement to prevent

17 pollution before it occurs rather than undertaking

18 expensive clean

- up operations. Option C is the

19 only way to assure safe disposal of coal ash."

20 I, therefore, urge EPA to reject the

21 White House's solid waste disposal option and

22 designate coal ash as a Subtitle C hazardous128

1 waste. Thank you very much.

2 MR. DELLINGER: Numbers 34, 35, 36, 37,

3 and 38.

4 MS. RUSSO: Hello. I'm number 34.

5 Gentlemen, let's se e, Steve, Jesse, Bob, Laurel, I

6 have a packet

-- I will

-- rather than give the

7 written comments so you can follow along with me,

8 my presentation will be three minutes, sir. But I

9 jus t wanted to show you, there's some maps, and

10 this is an important (inaudible).

11 MR. DELLINGER: Save you some time.

12 MS. RUSSO: Okay, thank you. Good

13 afternoon. My name is Mary Russo. I am

14 spokesperson for the Anne Arundel County Council

15 for the Environment. We're a small group of

16 activists who have fought since

-- if you'll look

17 at the histor y in the back, since 1979, actually,

18 on many issues, and this is an environmental

19 justice issue as well as it is a pollution issue.

20 We live near

-- all of us are in the shadow of the

21 B G&E.

22 In this little packet I gave you, it's a129

1 picture

-- it's actually a map

-- make sure I'm

2 going to read the o ther thing there

-- there's a

3 map that shows how many industries

-- it's called

4 A Major Particulate Matter Source Impacting ZIP

5 Code 21226. Actually, 21226 is Baltimore City and

6 it al so is part of Anne Arundel County. It's

7 where all the industry is. As you can see, it's

8 concentrated between

-- well, you can't see

9 Brooklyn maybe

-- Brooklyn, Brooklyn Park, and

10 Gle n Burnie, parts of Pasadena, and it's

11 encompassed. It has the highest concentration of

12 pollutants, actually, in the state.

13 I have also included in here the 2009

--

14 these are the most recent

-- within this area that

15 you're looking at, which covers actually a

16 three

- mile radius area, part of Dundalk, actually,

17 too, because they're right across the river from

18 this map that you see. I left my giant map home;

19 it was just too big to carry on the van.

20 At any rate, it starts from Valley

21 Proteins, which is an animal rendering plant, all

22 the way down to Nustar, and you'll find out that130

1 Constellation Energy has the most. But the

2 tonnages

-- whoops, my one minute. Did you t ake

3 out for me giving you those things?

4 MR. DELLINGER: Yes.

5 MS. RUSSO: Geez, okay. All right. So

6 the point is, this is an environmental justice

7 issue to the people that are most impacted, and

8 we're going to get another great big, giant

9 landfill and

-- off of Ft. Smallwood Road, which

10 is in that area of 210 feet that BG&E wants to put

11 this fly ash there.

12 So I would say to you, if you look at

13 the environment, the other handout inside here,

14 it's the environmental justice. And it says:

15 "It's a fair treatment and meaningful involvement

16 of all people regardless of race, color, national

17 origin, culture, education, or income, with

18 respect to the development, implementation, and

19 enfo rcement of environmental laws, regulations and

20 policies. 'Fair treatment' means that no group of

21 people, including racial, ethnic, or socioeconomic

22 groups should bear a disproportionate"

-- that's131

1 the key word here, "disproportionate"

-- "share of

2 negative, municipal, and commercial operations, or

3 the execution of federal, state, local, and tribal

4 environmental programs and policies." This is the

5 law we should go by. We should not be constantly

6 impacted with this.

7 And my brief testimony, whi ch is

-- I

8 can say in half a minute. I'm here today to

9 represent the Anne Arundel Council for the

10 Environment. Our group is a dedicated group of

11 community activists. We all live in the shadows

12 of major power plants plus many other industries,

13 the largest medical waste incinerator in the

14 nation

-- we fought that, but we lost that one

--

15 Millennium Chemical, W.R. G race landfill, Browning

16 and Ferris hazardous waste landfill

-- which is

17 still leaking into the groundwater

-- Solly Road

18 Compost Facility, Baltimore City dump, Ordnance

19 Road, and 25 ot her polluting industries.

20 We have managed to stop BG&E from using

21 anhydrous ammonia in their plant, and they were

22 not successful. This was to

-- this was a big132

1 thing. I didn't bring the picture of all the

2 people that were lined up there. We had to tell

3 them that that was not worth us having a very

4 dangerous waste stream being brought there. And

5 the County Council

-- so we were successful at

6 that. We stopped that.

7 We convinced the county

-- we could not

8 convince the County Council to prohibit BG&E from

9 using fly ash as a structural fill. The Solly

10 Road residents suffered greatly from the air

11 pollution. In fact, my one resident who has

12 passed away, most of them that were working there

13 live there right across from this, found their

14 apples in his orchards, the ash had penetrated the

15 apples.

16 MR. DELLINGER: You're g oing to have to

17 close right away.

18 MR. RUSSO: Oops. Okay, okay, I got

19 this little bit, just teeny

- teeny. A special

20 group was formed, CAFF, okay. I'm here today

21 really to plead and stand before you to say I

22 don't know that this C thing is going to be the133

1 same as classifying it as a hazardous wa ste, but I

2 really think you need to classify it as a

3 hazardous waste because it is a hazardous waste.

4 And I'm really sorry for these guys that are

5 saying, oh, gee, I'm going to have pr oblems. We

6 tried to work with BG&E on them having recycling

7 their plant stuff, and I think, Lola, you can talk

8 to that.

9 But any rate, the point is, is that they

1 0 lied to the people at every single meeting we went

11 to saying it was like dirt.

12 MR. DELLINGER: You're going to have to

13

--

14 MS. RUSSO: Well, it wasn't like dir t.

15 Okay. Thank you very much.

16 MR. DELLINGER: Number 35, please.

17 MS. RUSSO: Sorry about that.

18 MS. KOLBERG: Hello. My name is Rebecca

19 Kolberg, and I live at 7605 Bay Street, Pasadena,

20 Maryland, 21122. That's just downriver and

21 downwind from Constellation Energy's former

22 unlined dumping grounds for coal fly ash and its134

1 proposed new fly ash landfill.

2 I support listing coal ash as a

3 hazardous waste subject to regulation under

4 Su btitle C of the Resource Conservation and

5 Recovery Act. The reasons I call on the EPA to

6 support such federal regulation are threefold:

7 The health of the American public, the welfare of

8 wildlife, and environmental justice.

9 I want to draw attention to several

10 issues that have come to light because of

11 Constellation Energy's past, present, and proposed

12 coal ash disposal practices in Maryland. First,

13 to protect our health the EPA not only needs to

14 safeguard drinking water supplies, it needs to

15 monitor and regulate airborne or fugitive coal

16 ash. Recently testing near Constellation's ash

17 disposal site in Gambrills, Maryland, has shown

18 that the ash has not remained confined to the site

19 and airborne ash has contaminated nearby

2 0 neighborhoods.

21 This is very disturbing given

22 Constellation's recent proposal to build another135

1 coal fly ash landfill at the border of Baltimore

2 and Anne Arundel County. Unlike the Gambrill's

3 landfill, which involved filling a hole in the

4 ground, this landfill would be a so

- called

5 vertical l andfill, looming 170 feet above the flat

6 coastal plain, a veritable Mount Ashmore. That's

7 certainly not what most people picture when they

8 think of a landfill. Consequently, the EPA needs

9 to set height limits for coal ash landfills or

10 else face the threat of windborne fugitive ash

11 contaminating neighborhoods for miles around.

12 Secondly, to protect wildlife near coal

13 ash landfills the EPA needs to require strict

14 management and treatment systems to protect not

15 only groundwater, but surface water and wetland

16 areas. The landfill proposed for my area would be

17 built adjacent to non

- tidal wetlands built for

18 mitigation purposes as well as adjacent to and

19 upstream from tidal wetlands.

20 Then there is the issue of environmental

21 justice. From what I have read in the news media

22 and witnessed with my own eyes, utility companies136

1 dump fly ash mainly in low

- i ncome and minority

2 areas. This situation is doubly unfair when one

3 considers many of these people have had to breathe

4 the air from coal

- fired power plants for decades.

5 Thanks to the C lean Air Act, emissions from stacks

6 may soon be cleaner, but these disadvantaged

7 communities now face a different, perhaps even

8 greater threat in the form of more highly

9 contaminated a sh in their soil, waterways, and

10 air.

11 Finally, I want to express my outrage

12 that the EPA has chosen not to hold a public

13 hearing in Tennessee. Your decision is an insult

14 to the communities most devastated by ash disposal

15 failure and flies in the face of environmental

16 justice. On behalf of my sisters and brothers in

17 Tennessee, I call on you to reconsider that

18 decision. Thank you.

19 MR. DELLINGER: Number 35.

20 MS. FABULA: 36.

21 MR. DELLINGER: 36, sorry.

22 MS. FABULA: Thank you. My name is137

1 Cecilia Fabula, and I'm representing the Anne

2 Arundel County Council for the Environment, and

3 also I am chairperson for the Brooklyn Park

4 Advisory Council.

5 When I took over this position, it was

6 because the advisory chairman at the time, Ann

7 McCoy, had cancer. She is trying to survive. She

8 had an operation. They had to close her up and

9 they can't do anything with it. She's going to

10 die this year.

11 Also, I can name dozens, but I'll give

12 yo u four or five: Ann Jones, who lives on Seward

13 Avenue; the gentleman across the street from me,

14 Jim Foley, who had to have his lung taken out and

15 now it's gone to the other lung and the brain, and

16 he will be dead in six months.

17 Solley Road landfill, which was the dump

18 for Johnson and Speake, my brother worked there.

19 This year my brother died because he worked there.

20 We fought this for 40 years. Surely, you who are

21 being paid and you who are volunteers should take

22 some action. We have a President that will help138

1 you take the action. We are so sorry that our

2 families have to go through this.

3 Shirley Murphy, who was our county

4 counsel in the 3rd District, her 42

- ye ar

- old

5 daughter, and they live in that area

-- Pasadena,

6 Brooklyn Park

-- she has cancer of the brain.

7 She's dying. They gave her a year three months

8 ago. How many people are going t o have to die

9 before you decide that it's not exactly what's

10 written, but what you hope to be able to take some

11 action with?

12 We had a situation with MDE and, quite

13 frankly, I got so disgusted that I said let's get

14 them a rubber stamp, a rubber stamp, a rubber

15 stamp, a rubber stamp, because when you look at

16 those 37 places where we went to oppose it, we had

17 a rubber stamp. We did not have an organization

18 that was really going to observe what was going on

19 and to know that we need this action.

20 You're not doing that, so why don't you

21 resign? We'll get action committees from the

22 citizens and we'll divide all the money up, and139

1 you better believe they' ll go in there and enforce

2 it. And they'll go in there and give them hell.

3 And they would never have let BP Oil do what it

4 did in that particular area and destroy our whole

5 area.

6 Now, I'm not giving you any text for

7 that. I'm giving you live stories. If you want

8 about three dozen more, call me at Anne Arundel

9 County, Brooklyn Park Advisory Board, and I' ll

10 give you hell with it. Thank you.

11 MR. DELLINGER: Number 37.

12 MR. KAVAROVICS: Good afternoon. My

13 name is Scott Kavarovics. I'm the conservation

14 director at the Izaak Walton League of America.

15 Izaak Walton League is a national conservation

16 organization with about 38,000 members across the

17 country who hunt, fish, recreate, and are active

18 conservationists in their local community.

19 With our members, conserving and

20 protecting water resources is of utmost

21 importance. The league supports a strong and

22 appropriate solution to the widespread pollution140

1 caused by inadequate storage of coal ash waste.

2 Specifically, the league urges EPA to issu e a

3 final rule that regulates coal ash as special

4 waste under Subtitle C of the Resource

5 Conservation and Recovery Act.

6 Water quality is especially at risk from

7 unregulated coal ash storage and disposal. As

8 others have alluded to, most plants are close to

9 fresh water resources because of the vast amount

10 of water they use, and then on

- site storage of

11 coal ash in unlined ponds and on the surface poses

12 direct and serious threats to surface and

13 groundwater resources by their close proximity to

14 these waters.

15 Coa l ash contains a host of toxic

16 substances and heavy metals. And I'll highlight

17 just one from a fish and wildlife perspective:

18 Selenium easily moves from coal waste into the

19 water. It becomes more concentrated in the

20 aquatic food chain. It can render fish unsafe to

21 eat and ultimately cause reproductive failure in

22 fish populations. And birds that eat fish141

1 containing high levels of selenium may also

2 experience reproductive failure.

3 Strong and effective federal regulations

4 are necessary because a majority of states do not

5 require safeguards at most coal ash landfills and

6 ponds. Under the Subtitle C option, which the

7 league supports, all states would set equivalent

8 standards for the generation, storage,

9 transportation, and disposal of coal waste;

10 require permits for disposal facilities; and phase

11 out waste ponds. Proper disposal should require

12 composite liners, leachate collection systems,

13 adequate groundwater monitoring, and corrective

14 action, all of which are necessary to afford more

15 protection to the public health, fish, and

16 wildlife.

17 Absent this comprehensive approach under

18 Subtitle C, states would only be given suggested

19 guidelines for disposal safeguards. Moreover, the

20 EPA would l ack enforcement authority. This weak

21 approach under Subtitle D is completely inadequate

22 to address proper handling and disposal of the142

1 second largest industrial waste stream in America.

2 Finally, strong regulations will also

3 support the beneficial reuse and recycling of coal

4 ash as utilities will have economic inc entives to

5 find innovative methods to reuse this waste.

6 Several environmentally appropriate reuse options

7 exist today, and we believe encouraging additional

8 innovation makes sense with in the context of a

9 comprehensive approach to reduce coal ash

10 generation.

11 In conclusion, the Izaak Walton League

12 encourages EPA to issue a final rule adopting a

13 reasonable, necessary, and protective alternative

14 for disposal of coal waste under Subtitle C.

15 Thank you.

16 MR. DELLINGER: Number 38.

17 MR. SALMON: Hi. My name is Ryan

18 Salmon, coordinator for a climate and energy

19 policy at the National Wildlife Federation. On

20 behalf of the National Wildlife Federation, our

21 47

- state affiliate organizations, a nd our more

22 than 4 million members and supporters, we thank143

1 you for the opportunity to provide comments on

2 EPA's proposed r ule on coal combustion residuals.

3 Because state regulations have proven to

4 be inadequate to protect citizens and wildlife

5 from the toxic substances found in coal waste, the

6 N ational Wildlife Federation strongly supports

7 EPA's determination that coal ash be classified as

8 a special waste under Subtitle C of the Resource

9 Conservation and Recovery Act. Despite the litany

10 of documented impacts of coal ash contamination on

11 human health, water, and wildlife, currently there

12 is no meaningful federal regulation of this waste.

13 Although the industry claims that st ate

14 regulations are adequate and coal ash disposal

15 landfills and ponds are a safe way to deal with

16 the waste, the reality is that every year hundreds

17 of thousands of gallons of toxic s ubstances leak

18 into ground and surface water and leach into the

19 soil.

20 For example, in Montana, lawmakers have

21 actually exempted on

- site disposal of coal ash

22 from the state solid waste regulations. This has144

1 impacted the lives of thousands of people, an

2 entire aquifer, and large swaths of fish and

3 wildlife habitat. In Colstrip, Montana, the

4 consortium that owns a coal power plant had to pay

5 $25 million in 2008 to settle a class action

6 lawsuit filed by 57 residents whose drinki ng water

7 was contaminated by leaking coal ash disposal

8 ponds, one of which had been leaking for the last

9 three decades.

10 A toxicologist who examined the problem

11 stated that the wells contaminated by the plume

12 should not be used for irrigation or for drinking

13 by animals or people. The State of Montana's

14 response to this contamination has been to

15 negotiate privately with PPL, one of the

16 defendants in the case and the operator of the

17 plant. They agreed that the main requirement

18 would be to continue monitoring the spread of the

19 toxic plume and try to cycle the contamination

20 back into the ponds. But the plume is growing

21 larger every day, and the Montana Department of

22 Environmental Quality has refused to act in a145

1 meaningful way that will protect the community and

2 wildlife. It has had the authority to fine PPL

3 $10,000 per day for this contam ination, but it's

4 chosen not to do so.

5 Colstrip, Montana, is just one of many

6 examples of the failure of states to adequately

7 regular coal ash. There are over 180 sites

8 nationwide where coal ash is dumped in unlined or

9 partially lined ponds and pits. These toxic sites

10 pose major problems for fish and wildlife. The

11 following are just a few examples.

12 Researchers investigated the impacts of

13 coal ash ponds on green sunfish in North Carolina,

14 and found evidence that the selenium, copper, and

15 arsenic released from the ash ponds i ncrease skin,

16 eye, and gill aberrations and increased

17 nutritional stress in the fish.

18 In Texas, coal ash discharges into the

19 Brady Branch Reservoir, increases selenium

20 concentration in the inhabitant fish, leading the

21 Texas Department of Health to issue a fish

22 consumption advisory for the reservoir.146

1 The impacts of coal contamination on

2 communities, water, and wildlife and the failure

3 of states to implement effective regulations

4 underscores the need for EPA to regulat e coal ash

5 under Subtitle C of the Resource Conservation and

6 Recovery Act. Under Subtitle D, there would be

7 little change in how the states handle these

8 problems. National Wildlife F ederation strongly

9 urges EPA to implement the Subtitle C option for

10 the coal combustion residuals proposed rule.

11 Thank you.

12 MR. DELLINGER: Is Number 19 in the room

13 now? Okay. That person had been here, I was

14 told, at one time. We'll go on to Number 39, 40,

15 41, and 42.

16 SPEAKER: I'll talk to him.

17 MS. J.D. ANDREWS: I give honor to the

18 God of Israel, the Creator of Heaven and Earth,

19 his son Yeshua, which is and which was and which

20 is to come, and I honor the Holy Spirit that

21 dwells in me.

22 For five generations my family has147

1 occupied the farmland on Land of Promise Road in

2 Chesapeake, Virginia. The groundwate r sustained

3 us. My ancestors drew water from wells and pumped

4 water by hand. We celebrated the day our

5 homestead was blessed with indoor plumbing.

6 I support ministries in T hird World

7 countries that plant hand pumps, bringing

8 life

- giving water to poor communities. Now I find

9 my ancestral waters have been defiled by coal ash.

10 No longer does the groundwate r sustain us. No

11 longer does the groundwater bring life, it brings

12 death: Death by drinking, death by bathing,

13 corroding pipes, pumps, my body, my family. My

14 husband is in a wheelch air.

15 How could this happen in America? How

16 can my community be in worse condition than a

17 Third World community? Yeshua said in a parable,

18 "The thief cometh not but to steal , to kill, and

19 to destroy." The thief has come into my

20 community, into my home, into my family. The

21 thief has come to steal, alienate, to transfer the

22 ownership of property to anothe r, to kill,148

1 inducing death by drinking water, to destroy, to

2 destroy the established agricultural community by

3 dividing fie lds into urban subdivisions.

4 Who is this thief? In ancient times

5 when a city was under siege, invaders would cut

6 off the water supply. My community has been

7 invaded by a th ief using subversion. Our water

8 supply was poisoned. We became victims, in

-

9 fighting, division, and alienation the results.

10 Micah records in the God of Israel's

11 judgment ag ainst thieves as follows: "Woe to them

12 that devise iniquity and work evil upon their

13 beds. When the morning is light they practice it

14 because it is in the power of their hand. They

15 covet fields and take them by violence, and

16 houses, and take them away, so they oppress a man

17 and his house, even a man and his heritage."

18 Who is this thief that has invaded and

19 devised iniquity? Dominion Virginia Power. They

20 pay the golf course to take that coal ash as

21 landfill. They dump the coal ash directly on the

22 land without the necessary safety precautions.149

1 They defile our life

- giving water and our heritage

2 for generations. Now our community must bear the

3 cost of waterline installati on forcing us to buy

4 water from the thief that stole the groundwater in

5 the first place.

6 For this deliberate assault on our

7 community and the willful poisoning of our water,

8 restitution must be made. This injustice must be

9 corrected. There is no repentance without

10 restitution. I pray in the Name of Yeshua that

11 the thief will restore sevenfold and for th e

12 establishment of the Kingdom of Adonai on Earth as

13 it is in Heaven. Thank you. Amen.

14 MR. DELLINGER: Thank you. Could you

15 state your name?

16 MS . J.D. ANDREWS: Jeanette Dey Andrews.

17 MR. DELLINGER: Thank you. Number 40.

18 MS. J. ANDREWS: My name is Jasmine

19 Andrews. My water was contaminated by the coal

20 as h. I am a student at Hampton University but

21 Chesapeake, Virginia, is the place I call home. I

22 lived in the same place for 17 years, and whenever150

1 the family gathered together, it was in the

2 ancestor home in Chesapeake. No matter where I

3 went, I always knew that I could return to that

4 farm in Chesapeake until now.

5 When I would come home to visit, there

6 would always be a strain on how long I could stay.

7 A simple act like taking a shower was a barrier

8 between me and my family. Whenever I stayed in

9 Chesapeake for a long period of time, my skin

10 would break out, and I always feel this oily film

11 left on it from the water, feeling less clean than

12 before taking a shower. I would constantly have

13 to run to the store to buy gallons of water just

14 for everyone to have a simple glass of water to

15 drink, taking away from time spent together to run

16 errands. I would ca rt around empty gallon jugs to

17 refill in Hampton, just to bring back clean water

18 sometimes. Rather than staying home for one

19 continuous visit with my family I would have to

20 take an ho ur and 30 minute road trip, roundtrip,

21 back to Hampton every 2 days just to take a

22 shower.151

1 I am planning a weddin g. I intend to be

2 married in my backyard at my ancestor home in

3 Chesapeake. I chose this location because it is

4 my heritage. God makes a covenant with the land

5 and the people, and a s I enter the covenant of

6 marriage, I want to include my ancestral lands.

7 However, the water is contaminated, putting the

8 purity of the land in question. The only way to

9 restore the l and is with the immediate

10 installation of city water. This is where the

11 true iniquity is revealed because the very people

12 responsible for contaminating the water

--

13 Dominion Virginia Power

-- are the ones who are

14 charging money to install clean water.

15 My great

- great

- grandparents, against

16 many odds, managed to find a piece of the American

17 Dream and get a h ome after slavery and bondage.

18 They lived humbly, but God provided them with

19 clean water. Now, five generations later, I find

20 that I'm worse off than first generation freed

21 slaves wit h no clean water because a cruel enemy

22 has polluted it. In the pursuit of greedy gain,152

1 Dominion Virginia Power has taken away the gift of

2 clean water so they can sell me something that I

3 used to have for free.

4 Dominion Virginia Power must make

5 restitution for their perverse disregard for human

6 l ife by contaminating the drinking water. This

7 restitution must not be only for me, but others in

8 the community and the generations to come who will

9 be affected by the sickness of their greed.

10 MR. DELLINGER: Number 41.

11 MR. TYE: Greetings. My name is Robert

12 E. Tye, and I reside in Chesapeake, Virginia, and

13 today I'd like to speak just as a citizen from my

14 personal concern considering a health risk to my

15 family and friends from dumping coal ash in our

16 community, sculpturing a 216

- acre golf course with

17 1.5 million tons of fly ash. My concerns are as

18 follows.

19 The impact on home values when you go to

20 sell because of the proximity of the coal ash.

21 Number 2 is the wisdom of local and

22 state agencies approving dumping coal ash in a153

1 community dependent on home wells and septic

2 tanks.

3 Water pollution, sin ce the direction of

4 underground water aquifers flow in uncertain

5 directions.

6 Because Centerville Baptist Church,

7 which I attend, is in the proximity of the coal

8 ash dumping, the dust that the church members and

9 the preschoolers who play outside is very

10 hazardous. The health of golfers even concern me

11 that play on the golf course. The golf course

12 contains many waterholes which I understand were

13 not properly lined to prevent water seepage into

14 the water aquifers that flow beneath.

15 Disposal of fly ash, as we all know, is

16 a national concern, and it's a problem that should

17 be strictly regulated, and hopefully, that you

18 people will regulate it as a hazardous material.

19 Thank you for my time.

20 MR. DELLINGER: Number 42.

21 MS. FAGAN: Hello. My name is Greta

22 Fagan. I reside in Chesapeake, Virginia. I'm154

1 here to speak about coal ash as a hazardous waste

2 product of electric power. I'm going to let the

3 technical stuff be spoken by people that know

4 about technical things. I want to tell you about

5 how it's affected my life.

6 I was told it was harmless as dirt, and

7 they're going to build a golf course. I was kind

8 of excited about that because I like golf. The

9 first two years they dug holes so deep that you

10 couldn't see the dump trucks as they went down

11 into them. They took out sand, they put in coal

12 ash. No big deal, I like golf.

13 They rolled five days a week, six days a

14 week from 7:00 to 5:00 in the afternoon. This

15 black ash would be carried in the wind. It

16 covered our streets, it covered our yards, it

17 covered our cars, our swimming pools, those that

18 were lucky enough to have them. It came through

19 our windows into our furniture, our carpets, our

20 drapes. We didn't know that fly ash was

-- that

21 it was actually fly ash. We was told it was safe

22 as dirt.155

1 Well, we didn't know that they'd also

2 told the truck drivers that they needed to wear

3 protective clothing. Our children were outside

4 playing while they were dumping the fly ash, while

5 it was flying across our yards.

6 I, personally, in the last few years

7 have developed asthma, about a year and a half

8 after they started dumping. At my age, you don't

9 develop asthma. I have a young granddaughter that

1 0 has lived with us since she was eighteen months

11 old. I'm really worried about her, what she's

12 going to develop later on in life.

13 Now, our water is no longer safe to

14 dr ink even though they say it is. A lot of people

15 won't even have a cup of coffee at my house even

16 though I use bottled water. Have you ever sat

17 down to try to make pasta? Wash a potato after

18 you've peeled it? All of these things you have to

19 think about when you go to make a meal when your

20 water's contaminated. I'd like to share some of

21 these concerns about minor things like this that

22 you don't think about when you've got water, well156

1 water that's being polluted by this beautiful golf

2 course they were going to build us.

3 EPA needs to stand up and protect us.

4 EPA stands for right, not easy. To protect

5 Virginia water resources and the people that live

6 in our neighborhood, we can't even sell our home

7 and downsize. Our values have dropped so

8 drastically on our home we couldn't replace a home

9 to live in. My husband and I are in our 60s. Our

10 property may b e back where it should be in 20

11 years. We don't have 20 years. The water's going

12 to be contaminated forever, and it's not just my

13 water, it's not just my air: It's your families'

14 wa ter, it's your families' air.

15 Do the right thing. Step up. Don't let

16 it be the bottom line of big business for them to

17 have what they need to get rid of this coal ash.

18 You' ve got to regulate it. Thank you.

19 MR. DELLINGER: Numbers 43 and 44. And

20 45.

21 MR. SEARS: Hello. I'm Dennis Sears. I

22 live across the street from Greta. Well, sh e157

1 covered just about everything I wrote, so I'm

2 winding up having to shoot from the hip, so that's

3

-- look out.

4 The only thing different during the

5 dumping phase of the golf course

-- or beneficial

6 use program

-- I developed hay fever

- like

7 symptoms. I kept them for five years while they

8 were dumping. My doctor would say try this, try

9 that, try the other thing. You know, and I spent

10 hundreds of dollars just on sinus medication. It

11 didn't do me any good. It's eased up in th e past

12 year or so because everything's

-- well,

13 everything for the most part is covered. You

14 still get a bald spot now and then, and they're

15 out there trying to cover it up so they ca n still

16 play golf.

17 One of our meetings with the city and

18 the DEQ and the Health Department, it was really

19 disgusting. The DEQ guy got up and just spouted

20 o ff a regulation. He didn't have a clue what was

21 really going on. This beneficial use thing is

22 like a basket with a hole in it. You can do158

1 whatever you want, and at the end I'll sign off on

2 it. You're good to go.

3 Our water got tested before the project

4 started. It was good. After the news broke in

5 the paper, it was tested again. Levels were

6 higher, but the Health Department says they're

7 within acceptable levels. Well, when it goes up,

8 that's not acceptable. When I built my house 28

9 years ago, I had good drinking water. Not

10 anymore. I'm going to have to start paying for

11 city water. That's why I moved out of

12 inner

- Chesapeake out to the area where I could

13 have more land, not neighbors up my butt, and I

14 wouldn't have to pay for city water or sewage.

15 Well, guess what? I'm going to have to start

16 paying for city water. I never expected to have

17 to do that in my lifetime.

18 I have a friend that was in the trucking

19 business during the time of the dumping. He

20 stopped sending his trucks to do the dumping

21 bec ause the material was so chemically hot in his

22 trucks that it was eating up the aluminum wheels159

1 on his trucks and costing him money.

2 The DEQ needs some guidance from you

3 guys to have some real teeth in the regulations so

4 that maybe they'll do something about problems

5 like this. Thank you.

6 MR. DELLINGER: Number 44. Number 45.

7 MR. FOX: My name is Stephen Fox,

8 formerly of 1317 Murray Drive, Chesapeake,

9 Virginia. My wife Karen and I purchased our home

10 in t he fall of 2002, a little over a year after

11 the golf course was approved by the city. While

12 we were closing on our home we were required to

13 sign a disclosure on the noise effects from the

14 Navy jets. Nothing was said in regards to us

15 living next to a toxic waste dump disguised as a

16 golf course.

17 For five years we watched dump truck

18 after dump truck unload what we assumed to be

19 regular backfill dirt. During those years, we

20 would have storms move in, and, boy, what we now

21 know was fly ash into our homes and yards. Even

22 going to the stor e meant you would end up driving160

1 behind one of these trucks breathing the ash that

2 was blowing off them.

3 During t he years that the dump was

4 built, the mountains of ash would be left

5 uncovered for weeks and months at a time being

6 exposed to the wind and rain. Murray Drive is

7 well documented for b eing prone to flooding with

8 water reaching waist high. And between 2006 and

9 '07, my wife started becoming sick. Finally,

10 after a series of tests, she is diagnosed with

11 autoimmune dis ease, lupus.

12 At the end of March of 2009, I was

13 diagnosed with Stage 3 cancer. We were soon

14 overwhelmed with medical bills, but due to the

15 fact that we live next to the dump , we were unable

16 to sell our home. Most realtors we talked with

17 said our best choice was to burn it to the ground

18 or run like hell.

19 And finally, after advice from my

20 medical team and facing growing medical debt, we

21 were forced to file Chapter 7 this spring. During

22 the last year that we lived on Murray Drive, I had161

1 to euthanize three of my dogs: Two due to cancer,

2 one due to kidney failure. All this could have

3 been avoided if fly ash had been left classified

4 what it truly i s: A hazardous material. A

5 beneficial use should truly be a benefit to

6 society, not as a cheap means for corporations to

7 dispose of toxic materials.

8 If we had been endanger ed slug or mouse,

9 this dump would have been long cleaned up or,

10 better yet, never allowed. While even after

11 losing our health and our home, my wife and I feel

12 we are the lucky ones. We no longer have to live

13 next to that toxic dump.

14 In closing, all of us are here today

15 because EPA has failed us in the past. Today is

16 your chance to begin rectifying past mistakes.

17 Thank you.

18 MR. DELLINGER: We are pretty much on

19 our lunch break right now, but we have some people

20 who have flights that are coming up pretty soon,

21 so this panel is going to continue to work through

22 as many people as we can. We're going to have to162

1 start the next session at 1:00, thoug h. As we've

2 indicated to people that they would be speaking at

3 the, you know, 1:00 and 1:15 and 1:30 time period,

4 so I'm going to call on Number 167 now and 165 and

5 150.

6 MS. HAND: I thought I was going to

7 speak at 7:00 tonight and was not able to do so,

8 so I'm not really prepared other than the fact

9 that I don't need to be prepared because I've been

10 an environmentalist working against landfills and

11 toxic waste and things for 40

- some years. I am a

12 member of the Anne Arundel County Council for the

13 Environment. I've been a member of so many

14 environmental groups I don't even remember them

15 all over 40 years.

16 I am a nurse. I've found that going out

17 and becoming an environmentalist was one way of

1 8 making sure people helping people so they don't

19 become sick, because while I was in the hospital

20 so many people were sick and I couldn't help them.

21 But I found that if maybe if I go out and become a

22 part of a group that would make the environment a163

1 little more safer, that we wouldn't have so many

2 sick people.

3 I start a lot of my problems through

4 smoking, dumps, and things like that, but since

5 we're talking about the coal ash, my time with

6 them started when they started burning it. We met

7 in the community, and they said you will never see

8 this fly ash in a landfill. We will be able to

9 sell it. And Mrs. Russo and I actually tried to

10 go out and sell it to the state, an d we actually

11 had a law that our builders put in, but the

12 asphalt people came in and they tore that up so we

13 couldn't get that done. But they still

14 landfilled, and the people in the a rea were

15 covered with dust.

16 I hear the other people speaking from

17 Virginia, and I am just heartsick to think that

18 this has gone on so long. My concern is that over

19 the many years we got so concerned that we went

20 out and found candidates to run for office, and we

21 were able to get a lot of them elected. And

22 because of that we were able to get recycling164

1 through with many, many

-- the community right to

2 know, the worker right to know, we got a lot of

3 bills passed. And it is bec ause of this

-- it's

4 not just the government that did it, we had to go

5 out and we had to find these people. And so I can

6 say to you that this is government of the people,

7 by the peopl e, for the people. And I'm finding in

8 my 40 years it's more by the people than it is the

9 ones that are in office. And it's a

10 disappointment to us because we have so much time

11 we have given, our money and our energy and times

12 away from our family as volunteers.

13 So I just hope that you will not

-- I

14 hope you will be one of these "by the people."

15 Thank you.

16 MR. DELLINGER: Could you state your

17 name?

18 MS. HAND: I am Lola Hand, H

- A

- N

- D.

19 MR. DELLINGER: Thank you. Number 165.

20 Number 150?

21 MS. WASE: Good afternoon, and thank you

22 for allowing us to speak, very much. My name is165

1 Alana Wase. I work for the Maryland Sierra Club,

2 and we represent 15,000 members in the state of

3 Maryland.

4 I just

-- we've heard some really

5 heart

- wrenching stories recently, and I want to

6 compare those with the stories we heard earlier of

7 an executive director from Sherrill Industries who

8 said maintaining and recycling of CCR is in the

9 best interest to all society and, therefore,

10 please side with Subtitle D. Taking the risk to

11 damage this industry by regulating under Subtitle

12 C is not worth it. Another representative from

13 Dominion Power said Subtitle D

-- I'm sorry,

14 Subtitle C would be regulatory overkill.

15 After hearing such moving testimony of

16 people whose lives are endangered from this, I

17 think that it's really

-- it's disgrace ful to be

18 able to characterize Subtitle C that way. And I

19 just urge you all, as the Environmental Protection

20 Agency, perhaps as a young, naive

21 environmentalist, I urge you as the Envi ronmental

22 Protection Agency to do the right thing and166

1 protect our environment and our people. Thank

2 you.

3 MR. DELLINGER: Number 93.

4 SPEAKER: He's got 155 over here.

5 MR. DELLINGER: Well, I'm working off a

6 list that I was handed to

--

7 SPEAKER: Oh, I'm sorry. Sorry. I

8 (inaudible).

9 MR. DELLINGER: 93? 126? 168?

10 SPEAKER: Here he comes.

11 MR. DELLINGER: We'll probably be able

12 to f it you in. I only have two more numbers to

13 go. I'm sorry, I can't hear you.

14 SPEAKER: He's asking.

15 MR. DELLINGER: I think we'll be able to

16 fit you in. Okay, tha nk you.

17 MR. SCHWERMAN: My name is Jack

18 Schwerman. I'm owner of Schwerman Trucking

19 Company. We are a transporter of bulk materials

20 such as cement and fly ash, and we think the

21 current use of fly ash in concrete is the best

22 possible use as a waste.167

1 This country burns coal to make

2 electricity. We need electricity and everyone is

3 up in the morning, the first thing you do is turn

4 on the switch and the electricity comes on. And

5 to do that it generates waste in the for m of fly

6 ash. And, you know, I think the best possible

7 thing for the fly ash is to be as an add

- mixture

8 in the use of concrete because that waste is then

9 encased in concrete not to be harmful to anyone in

10 the future.

11 I've heard a lot of emotional stories

12 here of people getting sick when fly ash is being

13 used in a

-- put into these landfills, and I can

14 share their concern. I think the current use of

15 fly ash will be continued in the use of concrete

16 so that this waste is not put into the water table

17 and that sort of thing.

18 If you take all fly ash and make it as a

19 hazardous waste, it'll be very expensive, and I'm

20 not sure if the landfills in this country are set

21 up, because there's so much volume of fly ash i s

22 generated each day that it could not be adequately168

1 stored properly. And if it is the EPA's decision

2 to make it a hazardo us waste, then the problem we

3 have with that is it's going to

-- people will

4 stop using it in concrete. They're not going to

5 put concrete in sidewalks and schools and that

6 sort of thi ng, and the problem is going to get

7 worse rather than better.

8 So I would encourage the EPA to choose

9 wisely. I agree with everyone here today to

10 protect our environment, but , on the other hand, I

11 think the use of fly ash encased in concrete is

12 the best possible use. Thank you.

13 MR. DELLINGER: Number 155. Please

14 state your name.

15 MR. GREENBERG: Hello. I'm Michael

16 Greenberg. Thank you for having me today. So I'm

17 sitting here, it just seemed a little bewildering

18 how people, respectable, well

- off people, can

19 somehow argue that things with lead, mercury,

20 selenium, arsenic, should for some bizarre reason

21 not be qualified as hazardous. So that was kind

22 of strange.169

1 And then there was the argument that

2 there's stigma, which is really a very bad

3 argument. I mean, Ronald Reagan in his terms as

4 president almost never mentioned the word "AIDS"

5 due to the stigma, and that was obviously very

6 problematic. So stigmas are definitely something

7 that should be overcome rather than, you know,

8 letting them take us over.

9 So it does work okay for sidewalks and

10 roads

-- maybe it does, I don't know

-- then let's

11 use it, even if it's classified as hazardous. And

12 if it's not good, then let's not regardless of

13 what the term is. So, yeah, it is very important

14 that it be qualified as hazardous waste in order

15 to receive the amount of regulation that it

16 deserves on account of the fact that it is

17 actually hazardous unless those chemicals are not.

18 And another statistic which I have not

19 heard mentioned today is that 1 in 50 people who

20 are in communities where coal ash is improperly

21 dumped get cancer. And that's really a large

22 number. If the four of you know about Facebook,170

1 many people have five

- or six hundred friends,

2 most of whom they know, so that could turn into

3 about a dozen or so people who you personally know

4 getting cancer jus t because of coal ash. And

5 that's a lot.

6 So, yeah, I think that's about most of

7 what I have to say. And it's definitely important

8 that we do this at a national level becaus e state

9 legislatures suck sometimes. For example, Alabama

10 has a higher percent income tax for people with

11 lower income, and a lower percentage income tax

12 for people with higher income , and that's just one

13 example. So we need things at a national level.

14 That's it. Thank you very much, and I

15 hope to see some strong regulations coming from

16 you soon.

17 MR. DELLINGER: 142. 129. All right,

18 we're going to take a brief break. We want to try

19 to start at 1:00. It's about 5 minutes to 1:00

20 according to Steve Souder's watch, and tha t's the

21 one we started with, so we'll end with this one,

22 too. Thank you.171

1 (Whereupon, a luncheon recess was

2 taken.)

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22172

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

2 (1:10 p.m.)

3 MS. DEVLIN: I think we're going to go

4 ahead and get started. Again, good afternoon, and

5 thank you for attending today's hearing on EPA's

6 proposed coal comb ustion rule. As Bob said this

7 morning, this is the first of seven public

8 hearings that the agency will be conducting, and

9 the other hearings are scheduled for Denver,

10 Dallas, Charlott e, Chicago, Pittsburgh and

11 Louisville.

12 My name is Betsy Devlin and I am the

13 Associate Director of the Materials Recovery and

14 Waste Management Division in EPA's Office of

15 Resource Conservation and Recovery, and I am going

16 to be chairing this afternoon's session of the

17 public hearing.

18 On the panel with me this afternoon are

19 Rob St achowiak, Craig Dufficy and Alex Livnat. I

20 am not going to give additional background on the

21 rule. I think a lot of you were here this

22 morning, so I'm going to delete the summary of the173

1 rule just in the interest of time. What I do want

2 to go through though again is some of the

3 logistics for the hearing in case some of yo u

4 didn't hear it before. Speakers, if you were

5 pre

- registered, you were given a 15 minute time

6 slot when you're scheduled to give your 3 minutes

7 of testimony, and to guarantee that ti me we ask

8 that you sign in 10 minutes before your slot at

9 the registration desk. All speakers, those that

10 pre

- registered and those that walked in, were

11 given a number when we signed i n and that is the

12 order in which you will speak.

13 I will call speakers to the table by

14 number, four at a time. The table is to your left

15 and to my right. When your number is called, if

16 you will please move to the microphone and state

17 your name and affiliation for the record for our

18 court reporters. We may ask you to spell your

19 name or repeat it just to m ake sure we have it in

20 the record.

21 Again because we do have so many people

22 signed up for testimony today, we are strictly174

1 enforcing our three minute limit. We are using an

2 electronic time keeping system, so you'll have

3 that on the podium, as well as cards. The first

4 card will come when there is one minute left, a

5 second card when there's 30 seconds, and the third

6 will come up when your time has expired and when

7 your time has expired, I will ask you to conclude

8 immediately so we can get on to the next speaker.

9 When you've completed your testimony,

10 I'm going to ask that you go back and sit at the

11 table, remain there until all the speakers in your

12 group have finished and at the end of all of you

13 I'll ask if you have any written comments, to

14 please put them in the box over here at our court

15 reporter's table. Again we are here to hear your

16 comments on our proposed rule and we do want to

17 hear what you like, what you think needs

18 improvement or what you think needs clarification.

19 Again our goal today is to ensure that everyone

20 who has come to present testimony is given an

21 opportunity to provide comments. To the extent

22 allowable by time constraints, we are going to do175

1 our best to accommodate speakers that have not

2 pre

- registered.

3 As Bob said, we are scheduled to close

4 at 9:00 tonight, but we will go later. I think

5 we've already agreed to go later. If time for

6 some reason does not allow you to orally present

7 your comments, we have a table in the lobby where

8 you can provide a written statement in lieu of

9 oral testimony. Written statements are collected

10 and entered into the docket for the rule. They

11 are considered the same as if you had presented

12 them orally. So please don't worry if you don't

13 get to speak. We will consider your comments.

14 Again if any of you have not registered to speak

15 but would like to do so, I encourage you to go to

16 the registration table a nd sign up to speak. When

17 you signed in, there was an agenda and also some

18 material on the proposal as well as instructions

19 for submitting comments.

20 We are going to try to t ake occasional

21 very, very brief breaks. Probably in about

22 another 2 to 2

- 1/2 hours we'll try to take another176

1 10

- minute bre ak. But because of the high

2 attendance we're trying to keep the breaks very

3 short to allow as many people as possible to

4 present their testimony.

5 Again I'm going to ask you if anyone has

6 a cell phone could you turn it to vibrate or turn

7 it off? And if you do need to use the phone at

8 any time during the hearing, I understand that you

9 may have to, if you w ould just leave the room and

10 move to the lobby or just somewhere outside the

11 hearing room.

12 Again I do ask for your patience as we

13 proceed. This is our first hearing. I thin k the

14 morning session was able to go fairly smoothly,

15 but we'll make minor adjustments as needed. I

16 thank you again and I am going to try to get

17 started with this afternoon's session. I am going

18 to call speakers 47, 48 and 49. If you would

19 please come to the table. Thank you.

20 MR. STANT: Do I do something here?

21 MS. DEVLIN: No, we'll do it al l. All

22 you need to do is state your name.177

1 MR. STANT: I'm Jeff Stant. I'm the

2 Director of the Coal Combustion W aste Initiative

3 for the Environmental Integrity Project, and I

4 appreciate this opportunity to present testimony

5 on the national regulatory proposal for coal

6 combustion waste.

7 I'd like to focus on the release of our

8 report last week of "In Harms Way: Lack of Federal

9 Coal Ash Regulation Endangers Americans and Their

10 Environment" that we co

- released last week with

11 Earthjustice and the Sierra Club which documents

12 the problem of coal combustion waste contamination

13 at 39 more coal ash sites and demonstrates that in

14 many cases state agencies h ave remained silent

15 while private and public drinking water supplies

16 are threatened by the contamination.

17 Highlights of the report are as follows.

18 Number one, that contaminat ion from CCW is

19 pervasive. When combined with the 31 other coal

20 ash sites examined by EIP and Earthjustice in a

21 February report, and the sites already

22 acknowledged by EPA to be damage d by coal ash, the178

1 list of contaminated sites comprises some 137

2 sites now spread across 34 states, making this

3 truly a nat ional water pollution problem. At

4 every one of the 35 sites in this report that had

5 groundwater monitoring data, contamination of the

6 groundwater was readily apparent.

7 Numbe r two is that the levels of

8 contamination are toxic. At every one of the 35

9 contaminated sites, MCLs for metals were exceeded

10 in underlying groundwater with exceedances ranging

11 as hig h as 341 times the standard for arsenic at

12 the Hatfield's Ferry Landfill in Pennsylvania, 170

13 times the standard for cadmium, and 179 times the

14 standard for lead in groundwater leaving the

15 Little Blue impoundment in Pennsylvania, 37 times

16 the standard for selenium at the Northeastern

17 Landfill in Oklahoma, and antimony at 52 times,

18 beryllium 30 times, chromium 17 times, and nickel

19 22 times at groundwater leaving the Industrial

20 Access Landfill in Ohio.

21 The third point is that the

22 contamination is endangering people. At the five179

1 sites in which off

- site monitoring of drinking

2 water wells was undertaken, contamination of the

3 wells was confirmed in every case, with four of

4 the five having confirmed exceedances of MCLs in

5 residential wells. Additionally, state records

6 indicate that at least five private drinking water

7 wells are located within 2 miles of 19 of the

8 sites, and in 13 of those sites, the wells are in

9 the direction that the contaminate flow is moving.

10 In eight cases there's 25 or more

11 private drinking water supplies wit hin 2 miles of

12 the site, and in two cases there's more than 90

13 wells within a mile of site. People are in harm's

14 way.

15 The fourth and last point is that states

16 are not preventing the contamination or requiring

17 it to be remediated. Despite some indication of

18 contamination being acknowledged at 21 of the

19 sites, operators have been required to determine

20 the extent of the contamination at only five of

21 them. At no site did we find the state requiring

22 operators to clean up the contamination even when180

1 it was acknowledged that the contamination had

2 moved beyond the property lines of the dump sites.

3 I'd like to just close by saying that

4 the decision abou t coal combustion waste facing

5 EPA has been inevitable for decades. The agency

6 must do its job under federal law and stop the

7 pervasive, im minent and substantial threat to human

8 health in the environment occurring around the

9 nation's coal ash dump sites today. Thank you.

10 MS. DEVLIN: Thank you. Number 48?

11 MS. GRAVES

- MARCUCCI: Thank you. What

12 about health? In 1995, the Pennsylvania DEP

13 granted permission to allow 1 million and a half

14 tons of fly ash to be dumped in my parents' back

15 yard. That's how my story begins. I sought help

16 from the Pennsylvania DEP, but was told, and this

17 is a direct quote, "We the Department will presume

18 these wastes are safe until citizens can prove

19 otherwise."

20 Why would it be the responsibility of

21 the citizens to prove fly ash was unsafe? Why

22 would the Pennsylvania DEP protect ash and not181

1 health? Who gave this directive? We soon learned

2 that the Pennsylvania DEP was considering a

3 statewide general permit that would allow fly ash

4 to be dumped virtually anywhere in our state

5 without protections, but called beneficial.

6 We requested a public hearing before the

7 general permit was issued, and we were told one

8 would be held if sufficient interest was

9 expressed. Hundreds of requests were submitted,

10 however, we never did receive our public hearing,

11 and the general permit was granted on December 23,

12 1997, without any public input. I believe this

13 was by design, done systematically to exclude

14 public scrutiny, clearing the way for a statewide

15 cheap unregulating coal ash dumping.

16 To policymakers, rules mea n facts and

17 figures on a printed page, but communities like

18 mine live with the deadly consequences these

19 misguided policies create. It is long overdue.

20 Protecting human health from to xic coal ash should

21 be priority number one, not saving money for

22 wealthy industries and their lobbyists.182

1 Througho ut the next few weeks you will

2 be introduced to real people living and dying with

3 the dangers created by mismanaged coal ash

4 dumping. Pro

- industry policies at the

5 Pennsylvania DEP are running rampant as evidence

6 by file reviews and the recent reports "Out of

7 Control" and "In Harm's Way."

8 I have reviewed tens of thousands of

9 Pennsylvania documents througho ut the past decade

10 and I can tell you unequivocally I have never

11 reviewed a coal ash disposal site in Pennsylvania

12 that did not have contamination. Every single

13 site I have reviewed h as been highlighted in

14 yellow or circled in pencil but filed back in the

15 file. Time and time again the Pennsylvania DEP

16 does nothing to enforce. I ask you to remember

17 our faces. We are real people, we have real

18 concerns, we are here because of our health, and

19 we ask you to please focus the decision

- making on

20 health protections. Thank you.

21 MS. DEVLIN: Excuse me. Could you

22 please state your name and affiliation for the183

1 record?

2 MS. GRAVES

- MARCUCCI: Yes, I'm sorry

,

3 Lisa Graves

- Marcucci, and I work with the

4 Environmental Integrity Project and I'm a resident

5 of the Commonwealth of Pennsylvania.

6 MS. DEVLIN: Thank you.

7 MS. GRAVES

- MARCUCCI: Thank you.

8 MS. DEVLIN: Number 49?

9 MR. ADAMS: My name is Thomas Adams and

10 I'm executive director of the American Coal Ash

11 Associati on, Aurora, Colorado. I want to thank

12 you for the opportunity to speak today on this

13 subject.

14 The AC A A's mission is to encourage the

15 use of coal combustion products in ways that are

16 environmentally safe, technically appropriate,

17 commercially viable, and that contribute to a

18 sustainable society. We've been engaging in this

19 activity since 1968. In an effo rt to create

20 disposal regulations, the EPA has created a

21 serious potential threat to one of the most

22 successful recycling stories of this generation.184

1 Coal combustion products have been safely recycled

2 in numerous applications including cement,

3 concrete, wallboard, roofing products,

4 agriculture, geotechnica l fills, and many others

5 for decades. Should the EPA elect to create a

6 regulation which manages disposal under Subtitle C

7 of RCRA, we believe coal combustion products will

8 be stigmati zed, resulting in market rejection of

9 these products. Consumers who have a choice

10 between using a material that's considered a

11 hazardous waste for some reason and using a

12 material tha t does not have such a stain will make

13 the rational decision to use the nonhazardous

14 option.

15 The EPA has cited damaged cases as a

16 primary basis for creating its hazardous was te

17 disposal regulations. None of the cases, the

18 damaged cases, are connected to beneficial use of

19 coal combustion products, not one single case. In

20 fact, two of the specific cases ci ted by EPA have

21 shown no effects on human health and the

22 environment. The EPA's own Region 3 report on the185

1 Battlefield Gol f Course states there is no effect

2 on groundwater in the property surrounding the

3 golf course. Two reports on the Kingston,

4 Tennessee impoundment failure indicate no

5 short

- term or lon g

- term health effects related to

6 the spill. The U.S. Department of Health and

7 Human Services, along with Tennessee Department of

8 Health, issued a report last December stating that

9 the re were no long

- term health effects indicated

10 from the spill.

11 Within the last 3 weeks, an additional

12 report was issued on testing of 200 individuals

13 residing in close proximi ty to the Kingston plant

14 which showed no material health effects related to

15 the spill. Both of these are EPA prime examples

16 to justify the need for hazardous waste

17 regulations which s how no damage to human health.

18 So we must ask the question, is there no damage

19 because there is no damage, or is it that we just

20 have not done enough research? And if it the

21 latter, h ow much research is enough?

22 The Board of Directors of the American186

1 Coal Ash Association passed a resolution earlier

2 this year supporting national enforcement

3 authority for EPA under Subtitle D of RCRA. The

4 same resolution calls for opposition to any form

5 of Subtitle C regulation. We simply cannot afford

6 to risk the progress and recycling CCPs for the

7 sake of creating the most extreme regulation for

8 disposal. Disposal requirements are the same

9 under Subtitles C and D and we call on EPA to say

10 yes to the continued safe recycling of CCP with

11 Subtitle D regulation of coal ash disposal. We

12 hope you'll rule on science and not science

13 fiction or political science. Thank you.

14 MS. DEVLIN: Speakers number 50, 51, 52

15 and 53.

16 MS. WIDOWSKY: I'll just show these to

17 you up front. I was going to say this at the end

18 of my spee ch, but all things considered, I'm going

19 to say it now and I'll say it again at the end.

20 MS. DEVLIN: Can you state your name for

21 the record?

22 MS. WIDOWSKY: Yes, my name is Lisa187

1 Widowsky and I'm an attorney with the

2 Environmental Integrity Project. As I'm sure you

3 know, both Subtitle C and Subtitle D will

4 completely exempt regulation of beneficial reuses.

5 Everyone in this room knows that, and you know

6 that, too. We're not trying to regulate

7 beneficial reuses, we're trying to get safeguards

8 put in place from unsafe disposal that's been

9 happening around the country, in Maryland,

10 Virginia and all of the places you're hearing

11 about today and in the next few weeks.

12 EIP, our organization, was founded by

13 former EPA enforcement attorneys to ensure strict

14 implementation and enforcement of environmental

15 laws. We have recentl y investigated polluting

16 coal ash dump sites throughout the 31 states

17 nationwide that are now already home to leeching

18 coal ash dumps due to insufficient regulations and

19 meager state e nforcement attempts, including

20 Maryland, Pennsylvania, and Tennessee. I'm

21 licensed to practice in the Commonwealth of

22 Pennsylvania, and I've spent many hours throughout188

1 the state visiting with families and communities

2 struggling to protect their livelihoods and their

3 lives from the toxic effects of mismanaged coal

4 combustion waste dumps in their communities.

5 Although Pennsylvania has among the most

6 extensive coal ash disposal regulations in the

7 country, requiring liners, groundwater monitoring

8 and other protections that many other states in

9 the country still lack, its coal ash regulatory

10 system is fraught with gaps that make the Subtitle

11 C regulations a necessity for the pr otection of

12 Pennsylvanians as well as citizens throughout the

13 country.

14 The Pennsylvania regulations have

15 grandfathered out of regulation disposal sites

16 that were active before the regulations were

17 promulgated in 1992 and have left dangerous

18 loopholes that permit and even promote dangerous

19 so called beneficial reuses like reclamation of

20 ab andoned mines with coal ash of which there have

21 been several damaged cases. These deficiencies in

22 the state regulatory scheme have put communities189

1 at risk despite the state's intention to regulate

2 this toxic waste stream with more stringent

3 regulations than most other states.

4 When you are deciding whether to

5 regulate coal ash under the federally enforceable

6 Subtitle C or the suggested guideline that is

7 Subtitle D, please think about the 30

- year

- old man

8 who bought his first house and had begun to make

9 costly improvements when his drinking well, about

10 1,000 yards from First Energy's unlined Little

11 Blue Run impoundment, this is his mother in the

12 photo and she'll be speaking la ter, was measured

13 to have arsenic above the maximum contaminate

14 level in his well. Are his hard

- earned savings

15 and life worth more than the cost that it would

16 have taken for First Ene rgy to put their ash in a

17 lined landfill?

18 In addition, I also want you to think

19 when you're regulating about the little boy whose

20 family just set up a pool in their back yard to

21 congratulate him on doing well in kindergarten.

22 The boy's family is African American and his190

1 mother just returned from serving in Iraq. The

2 family has to replace the filter in the pool water

3 every single day because of the ash that comes in

4 from unlined trucks.

5 These are just two people amon g many of

6 thousands plagued by mismanaged coal ash. When

7 EPA is deciding how to regulate coal ash, I want

8 you to remember that the $20.3 billion total that

9 it will cost this industry is a de minimis cost to

10 the coal industry and that it is expressly lower

11 than Subtitle D costs because EPA expects

12 noncompliance with Subtitle D.

13 MS. DEVLIN: Your time is up

.

14 MS. WIDOWSKY: Thank you.

15 MS. DEVLIN: Thank you. Number 51?

16 MR. KEIPER: Good afternoon. My name is

17 Hank Keiper and I'm a licensed engineer employed

18 by the SEFA Group, a coal combustion products

19 marketing company based near Columbia, South

20 Carolina. I'm based in Richmond and I'm currently

21 the area manager responsible for the mid

- Atlantic

22 region. I'm also a camper, canoeist, and avid191

1 Chesapeake Bay sailor, and I strongly oppose the

2 Subtitle C designa tion for coal combustion

3 products. In 2006, I personally recycled 168,000

4 tons of fly ash and bottom ash generated by my

5 utility partner, Myriad. That's more than all the

6 recycled ma terial delivered by the residents of

7 Arlington County in 2006. But I need to discuss

8 stigma.

9 The EPA proposal clearly states the

10 A gency does not want to disrupt curre nt recycling

11 efforts. Members of the A gency stated during

12 recent webinars they believe Subtitle C will

13 dramatically increase CCB recycling. If that's

14 true, then my company and I will benefit

15 financially. So why do I argue against my own

16 personal financial interest?

17 My 25 years of experience as an engineer

18 has taught me that engineers, architects and

19 building owners are more risk a verse than ever in

20 our litigious society. I live near Chesterfield

21 County, Virginia, where a Home Depot store was

22 demolished in 1996. Coal combust ion products were192

1 used to structural fill and incorrectly blame d for

2 the building's se ttlement . Fourteen years later,

3 people still prohibit the use of fly ash as an

4 additive in concrete because of the Home Depot

5 case.

6 Fly ash was also listed as a possible

7 cause of the problems relating t o the Chinese

8 drywall, but only if you dig much deeper will you

9 learn there was no fly ash in the Chinese drywall,

10 but the damage was done by mere association. My

11 customers, concrete producers, are also concerned

12 about stigma and liability. Under EPA's special

13 waste proposals, two trucks will leave the power

14 plant, one will turn right destined for disposal

15 as haza rdous waste, at the same time, the second

16 truck with the exact same material on board will

17 turn left and travel to my customer's plant with

18 no restrictions other than the normal DOT. It's

19 very difficult for the public, business owners and

20 their attorneys to reconcile this concept. As an

21 engineer, I believe the Subtitle D proposal option

22 provides rigorous protection with commo n sense193

1 management practices. Agency staff freely admit

2 the engineering safeguards in both proposals are

3 virtually identic al, so one must conclude that a

4 Subtitle C designation is primarily an attempt to

5 influence the commercial commodity market.

6 The stigma against coal combustion

7 products is re al. If I'm wrong, I'll make a lot

8 more money. But if I'm correct and EPA's

9 fundamental assumption is flawed, then my entire

10 industry including thousands of jobs will be in

11 peril and more millions of tons of coal combustion

12 products will end up in landfills or surface

13 impoundments instead of less. We must resist the

14 urge to asbestosize coal combustion products and

15 preserve one of America's great all

- time recycling

16 success stories and only Subtitle D will do that.

17 Thank you for your time.

18 MS. DEVLIN: Thank you. Number 52,

19 plea se.

20 MS. GOTTLIEB: Good afternoon. My name

21 is Barbara Gottlieb. I'm deputy director of the

22 Environment and Health Program at Physicians for194

1 Social Responsibility. We're a national

2 organization of 50,000 physicians and other health

3 professionals, members and activists working to

4 prevent those h ealth problems that we cannot cure.

5 Coal ash falls squarely into that category.

6 Let's remind ourselves that it contains

7 some of the world's deadliest toxic metals.

8 Arsenic, l ead, mercury, cadmium, chromium,

9 selenium, and other toxicants in coal ash can and

10 do cause cancer, neurological damage including

11 developmental disorders, respiratory disease,

12 reproduc tive impacts and other problems in human

13 beings while killing and damaging wildlife,

14 especially fish and other water

- dwelling species.

15 The threat that coal ash poses to human health is

16 serious and it is widespread. Coal ash is the

17 second largest industrial waste stream in the U.S.

18 after mining wastes, it's disposed in

19 approximately 2,000 sites across the nation, and

20 coal ash toxicants have leached from disposal

21 sites in well over 100 locations, carrying toxic

22 substances into aboveground and underground195

1 waterways and in many cases drinking water wells.

2 As the damage cases indicate with coal ash causing

3 real damage, if there's going to be stigma

4 associated with coal ash, let's put that stigma on

5 the lives that are lost and not the jobs.

6 The impacts to health are severe. The

7 EPA itself has issued a risk assessment report

8 indicating that people who lived ne ar an unlined

9 wet ash pond and who get their drinking water from

10 a well have as much as a 1 in 50 chance of getting

11 cancer from drinking water contaminated by

12 arsenic. Even where peop le are not drinking

13 contaminated water, their health may be threatened

14 if they eat fish that's taken from waters

15 contaminated by coal ash toxicants. Coal ash is

16 also dangerous if inha led. Making fugitive dust

17 from coal ash is a serious health concern.

18 I'd like to stress though one other

19 point that I haven't heard enough about today, and

20 that is that coal ash is persistent over time.

21 This raises long

- term concerns and challenges in

22 regard to health. When coal ash contaminants196

1 leach out of unlined surface impoundments, it can

2 take decades until they reach peak concentrations

3 in nearby well water. The EPA has estimated it

4 might be 74 years for selenium, 78 years for

5 arsenic, 94 years for cobalt.

6 What these numbers suggest is that coal

7 ash toxicants are going to be with us and with our

8 kids and with our grandchildren for a long time.

9 They do not disintegrate, they do not lose their

10 toxicity, they never really go away. Either we

11 securely contain coal ash toxicants or they will

12 disperse into and contaminate our environment and

13 damage our health.

14 For that reason, Physicians for Social

15 Responsibility calls on the EPA to discharge its

16 duty to protect the environment by applying the

17 strictest possible levels of control over coal ash

18 disposal. We strongly support Subtitle C as the

19 only option currently on the table that would

20 adequately protect human health. Based on the

21 needs for public health, we call for a federal

22 regulation of coal ash disposal, phase

- out of wet197

1 storage, and limiting the recycling of coal ash to

2 uses where coal ash is not exposed to water and

3 where the ash is chemically bound. Unencapsulated

4 uses and minefilling must end. On behalf of

5 Physicians for Social Re sponsibility, thank you.

6 MS. DEVLIN: Thank you. Number 53?

7 MS. FEENEY: My name is Katie Feeney.

8 I'm a project director with the Clean Air Council,

9 and on behalf of the Council I would like to thank

10 the U.S. EPA for the opportunity to comment today

11 on its proposed coal ash rule.

12 The Clean Air Council is a nonprofit

13 environmental and p ublic health advocacy

14 organization. We seek to protect everyone's right

15 to breathe clean air. The Council was

16 incorporated in 1967 and we operate in

17 Pennsylvania, Delaware, and New J ersey.

18 The purpose of my testimony today is to

19 strongly urge EPA to ignore the intense lobbying

20 of corporate interests in trying to get EPA to

21 overlook public health in favor of corporate

22 profits. Coal

- fired power plant pollution is198

1 hazardous to our health. Burning coal creates air

2 pollution, c oal ash and coal waste, and they are

3 all a threat to public health. The time has come

4 to insist that utilities and others that burn coal

5 pay the full health and environmental costs of

6 using coal from generation to disposal. Last

7 Thursday the Council testified in an EPA hearing

8 in Philadelphia in favor of EPA's proposal to

9 issue federal implementation plans, to reduce

10 interstate transport of fine particulate matter,

11 and ozone, better known as the transport rule.

12 Just as utilities must pay the cost of reducing

13 air pollution from burning coal, they must also be

14 made to pay the cost of properly disposing of the

15 coal ash. EPA should not be in the business of

16 helping to facilitate utilities finding a better

17 way to undercut public health protection by

18 supporting weak disposal rules and unsafe

19 beneficial uses that threaten our public health.

20 Let's accept that coal ash is hazardous and

21 require that it be handled, transported and

22 disposed of as such.199

1 The Council urges EPA to regulate coal

2 ash under Subtitle C of the Resource Conversation

3 and Recovery Act. Pennsylvania, where I was born

4 and raised and still live, is a coal state and the

5 economics and politics of extractive industries

6 such as coal are politically very power ful.

7 Pennsylvania's health and environment are plagued

8 by the historic unwillingness of state and federal

9 officials to hold coal interests accountable for

10 the full cost to public healt h and the environment

11 of coal use. Some in industry will argue that

12 EPA's proposal to designate coal ash as hazardous

13 waste or more euphemistically a special waste,

14 will cost industry , and it will, but it will

15 substantially lower the cost of public health and

16 the environment which would result from continuing

17 to dump underregulated coal ash into ponds and

18 landfills and allowing too broad a definition of

19 beneficial use.

20 Because of its historic alliance in coal

21 energy, Pennsylvania's environment continues to be

22 under threat from coal use , coal incineration and200

1 coal disposal. Take for instance two of the

2 biggest current concerns which include the Bruce

3 Mansf ield Power Station in Shipp i n g port and

4 Hatfield's Ferry Power Station which has already

5 been discussed today and hopefully will continue

6 to be so. According to a recent report, which

7 you've also heard about, we are seeing offsite

8 migration of toxics from coal ash and waste. I'm

9 attaching as part of my testimony the report's

10 assessment of those two sites.

11 To close, I want to be clear that I

12 think this rule is about public health, and on

13 behalf of the Clean Air Council I thank you for

14 the opportunity to testify today.

15 MS. DE VLIN: Thank you. Numbers 54, 55,

16 56 and 57? Also, has number 46 joined us? Number

17 54?

18 MR. SHAMORY: I am Craig Shamory,

19 Environmental Manager with PPL Corporation. PPL

20 owns or controls nearly 12,000 megawatts of

21 merchant power generation in five states,

22 including four coal

- fired plants in Pennsylvania201

1 and Montana. Annually we generate 3 million tons

2 of coal combustion residuals, CCRs, and of that

3 total we beneficially use 2 million tons. CCRs

4 from our Pennsylvania plant s have been effectively

5 regulated since 1992 as a nonhazardous waste under

6 Pennsylvania's residual waste regulations.

7 Furthermore, Pennsylvania and Montana recognize

8 that properly impl emented beneficial uses are an

9 environmentally responsible option for managing

10 these materials.

11 A federal Subtitle D nonhazardous waste

12 regulation along the lines of Pennsylv ania's

13 successful program would support beneficial use of

14 this large mineral resource. Conversely, federal

15 Subtitle C hazardous waste regulation would

16 severely limit and most likely e liminate

17 beneficial uses including cement industry

18 applications and mine reclamation. Beneficial

19 uses create thousands of jobs and provide their

20 own significant environmental benefits . The

21 impact of beneficial use from the stigma of

22 labeling CCRs as a hazardous waste is real and is202

1 already occurring. On e of PPL's largest marketers

2 of coal ash for cement products has had one of its

3 main customers stop using coal ash. Why?

4 Potential product liabilities if EPA actually

5 regulates CCRs a s a hazardous waste.

6 Furthermore, many companies have told

7 our marketers they will not use coal ash in their

8 products. Why? Because they don't want their

9 products to contai n an ingredient that would

10 otherwise be subject to hazardous waste

11 regulation. Based on EPA's own economic analysis,

12 if Subtitle C eliminates beneficial use, the

13 financial impact on o ur struggling economy will be

14 in the billions of dollars. So if we can't

15 beneficially use it we'll be forced to dispose of

16 all these CCRs and that's very problematic, if

17 even possible , under the Subtitle C approach.

18 Both Pennsylvania and Montana do not have any

19 commercial Subtitle C landfills. Therefore, PPL

20 would either have to permit on

- site Subtitle C

21 landfills , which is an uncertain proposition, or

22 be forced to find among the very few limited203

1 numbers that exist across the nation a facility

2 that would have the capacity and permits to accept

3 such large volumes of waste, another uncertain

4 proposition. PPL strongly opposes federal

5 Subtitle C regulation and instead requests that

6 EPA regulate CCRs under the Subtitle D prime

7 option including a modification that integrates

8 with current state regulatory programs such as

9 Pennsylvania's residual waste and dam safety

10 regulations. This approach will create a

11 reasonable and effective regulatory program that

12 protects the environment, retains options for

13 beneficial use and preserves jobs while not

14 adversely impacting our economy. Thank you.

15 MS. DEVLIN: Thank you. Number 55?

16 MS. SHEPARD: Thank you for the

17 opportunity to speak before you today. My name is

18 Betsy Shepard and I come to you today from Surry

19 County, Virginia which is about 3 hours south of

20 here. Maybe you've heard of the Michael Vick dog

21 fighting case and that's us. We're a rur al

22 community. We're a poor community. We're also a204

1 minority community. We're an African

- American

2 community. We have bef ore us in our community a

3 proposal for the largest coal

- fired power plant in

4 the State of Virginia. With that power plant

5 would come obviously coal ash landfills and

6 according to the utility who's proposing this, the

7 potential for a 1,600

- acre coal ash landfill that

8 would take up about two

- thirds of the entire

9 landmass of the town that this is proposed for.

10 This is 3 miles from our schools, it's 8 miles

11 from my home and it's 1,500 feet from the town's

12 well water supply.

13 One of the things that you hear a lot in

14 our community is that the EPA would never allow

15 anything to come through that would harm us. This

16 is a very common refrain and people really believe

17 that where I live. I'm very thankful to the EPA

18 for workin g on the air emissions from coal

- fired

19 power plants. I understand that you all are in

20 the process of pulling a lot of those toxins out

21 of the air. But as we know, those will not just

22 disappear, those toxins will go into the ash and205

1 if those toxins are too hazardous to go air borne

2 then they're probably also hazardous as l andfill

3 material.

4 I understand the monetary concerns of

5 the utilities, but one of the things that I also

6 hear a lot this last year as this proposal has

7 come before us is that coal is the cheapest form

8 of electricity so that it would seem to me that

9 they have plenty of room for that increase in

10 their industry. In the same way that we would not

1 1 allow Firestone or Toyota to continue to market

12 dangerous tires or faulty breaks in the name of

13 cost saving, we shouldn't allow coal ash to be

14 marketed in the same manner.

15 I can't imagine going to the restaurant

16 here at the hotel this morning and ordering an

17 omelet and having no federal oversight that

18 perhaps you're getting salmonella tainted eggs.

19 H ow much would you take as a price reduction on

20 your omelet to know that there was no federal

21 oversight on your eggs? That's my neighborhood,

22 we're happy to pay extra for the federal206

1 oversight. The EPA would never allow anything to

2 harm us. Thank you so much for your time.

3 MS. DEVLIN: Thank you. Number 56,

4 please? Number 57? Let's try 58, 59, 60 and 61,

5 please.

6 MS. FOX: Good afternoon. My name is

7 Mary Fox, Assistant Professor in the Department of

8 Health Polic y and Management at the Johns Hopkins

9 Bloomberg School of Public Health. I'm a risk

10 assessor with 20 years' experience in

11 environmental health and I'm here today as a

12 private citizen.

13 I would like to make four points. Coal

14 ash contains multiple toxic constituents that can

15 appear as mixtures in the ambient environment.

16 Enforceable standards are needed for disposal in

17 sand and gravel pits, quarries and landfills. We

18 need to know the locations of disposal pits, past

19 and present. Risk assessments to date have likely

20 underestimated healt h risks. The latest reviews

21 show that arsenic cancer risks are higher than

22 previously thought and noncancer risks are under207

1 estimated if mixture exposures are not evaluated.

2 Regarding multiple contaminants, the

3 proposed rule summarizes the Gambrills damages

4 case in Anne Arundel County, Maryland where coal

5 combustion waste was used to reclaim a former sand

6 pit. Coal combustion waste constituents reached

7 the drinking water wells of nearby residents. In

8 total, 34 wells were contaminated with

9 concentrations of aluminum, arsenic, beryllium,

10 cadmium, lead, manganese, and thallium above

11 drinking water standards. I would like to

12 emphasize that several of those wells were

13 contaminated with multiple coal ash constituents

14 demonstrating the importance of assessing

15 combinations of coal ash contaminants and

16 vulnerabilities of unlined disposal areas. Three

17 of the commonly used coal combustion waste

18 management practices, landfill, surface

19 impoundment or use and reclamation in mines result

20 in localized disposal. We will be unable to fully

21 assess or correct environmental or public health

22 risks unless disposal locations are known.208

1 To date, cancerous assessmen ts of

2 arsenic exposure have been based on studies of

3 skin cancer. Epidemiological evidence on arsenic

4 ingestion shows greater risks of several internal

5 organ cancers such as bladder, kidney, lung, liver

6 and prostate so that estimates using the skin

7 cancer data will underestimate total cancer risks

8 from arsenic ingestion, and arsenic exposure is

9 also associated with some noncancer outcomes

10 including diabetes and hypertension. In

11 conclusion, I believe my concerns would be best

12 addressed and public health better protected to

13 regulation under RCRA Subtitle C.

14 MS. DEVLIN: Thank you. Number 59,

15 please.

16 MR. SELLS: Thank you very much. My

17 name is Robert Sells and I'm with Titan America.

18 I re present our concrete products group and I'm

19 representing today the concrete industry and the

20 need for fly ash in the use of concrete.

21 We are very supportive of Subpart D in

22 t he fact that concrete is dependent upon209

1 cementitious products. The coal combustion

2 products that you're talking about today are

3 invaluable to the concrete producer today. As

4 much as 20 to 25 percent on average of

5 cementitious product that is used in concrete

6 comes from fly ash and other cementitious

7 mate rials. That material is chemically bound in

8 the concrete in the end product, it reduces the

9 heat of hydration in concrete production and

10 reduces the permeability. Fly ash is extremely

11 beneficial to concrete. In addition, the industry

12 which is not a very profitable industry has done

13 everything it can to maximize the use of fly ash

14 in concrete. There were over 460 million cubic yar ds of

15 concrete consumed in 2006. The average price was

16 sold at $90.30, and the gross profit for the

17 Ready

- Mix concrete producer was about $7

- 1/2.

18 This is before taxes. However, with the economic

19 turndown and the industry continuing to maximize

20 its use of fly ash, the average selling price has

21 increased slightly but other costs have increased

22 more dramatically and the current gross profit is210

1 about 20 cents per cubic yard. It is extremely

2 important to understand that the use of fly ash

3 saves the Ready

- Mix producer about $4.75 per yard.

4 One of the things that is of great

5 concern to the thousands of Ready

- Mix concrete

6 producers in the United States is the possible

7 designation of hazardous waste. We have seen this

8 before in other areas and are very much concerned.

9 You've heard statements today already where

10 specifiers have shied away from the use of fly as h

11 in specifications simply because of the potential

12 designation of ‘ hazardous ’ . This will not increase

13 the use of fly ash in concrete and force power

14 plants to supply more to Ready

- Mi x producers, it

15 will actually decrease it. The Ready

- Mix producer

16 will shy away from the hazardous designation of

17 fly ash and will not use the product because of

18 the potential liabili ty.

19 Follow the movement. Today there is no

20 issue around fly ash use in concrete. Now it

21 becomes a hazardous designation if it goes to a

22 landfill. How long will it be befor e that211

1 hazardous designation is applied and concrete is

2 ripped up at the cost to the producer? Thank you

3 very much.

4 MS. DEVLIN: Thank you. Number 60,

5 please.

6 MR. SMITH: Good afternoon. My name is

7 David Smith. I'm the Director of Environmental

8 Health and Safety Se rvices for Old Dominion

9 Electric Cooperative or ODEC. ODEC is a

10 generating and transmission cooperative

11 headquartered in Glen Allen, Virginia that

12 provides electric power to 11 distri bution co

- ops

13 in Virginia, Maryland and Delaware. Among our

14 portfolio of generation assets, Old Dominion

15 currently has a 50 percent ownership in the 850

16 megawatt coal

- fired Clover Pow er Station which is

17 located in Halifax County, Virginia. ODEC is also

18 a member of the National Rural Electric

19 Cooperative Association and we fully support the

20 testimony that they have submitted on behalf of

21 the approximately 66 electric co

- ops that generate

22 and transmit electricity across the country. As a212

1 50 percent owner in the Clover Power Station and

2 because of our current interest in potentially

3 developing a similar coal

- fire

- based load

4 facility, my company will be directly and possibly

5 disproportionately impacted by the final CCR rule.

6 I am here today to state that ODEC

7 favors the development of federal regulations for

8 CCRs under RCRA Subtitle D prime nonhazardous

9 waste program. However, we feel strongly that

10 regulating CCRs as a hazardous waste under RCRA's

11 Subtitle C program would impose unnecessary

12 regulations and costs on our current and prop osed

13 coal

- fire facilities, would threaten jobs,

14 increase electric rates and have a large effect on

15 the beneficial use industry. EPA is obligated to

16 pursue the least

- cost approach in o rder to

17 mitigate impacts on the firms that can least

18 afford them. Since the proposed controls for CCRs

19 are virtually identical under C and D, in

20 approaches that would be expected to p rovide the

21 same increased levels of protection, Subtitle D

22 should be adopted.213

1 However, the regulations of CCRs as a

2 hazardous waste under RCRA Subtitle C would

3 introduce many unnecessary measures such as

4 potentially requiring each generating facility to

5 acquire and operate storage facilities with TSD

6 permits. The Clover Power Station currently

7 utilizes a dry landfill system for storage and

8 disposal of CCRs that is lined and monitored with

9 groundwater monitoring wells and will be capped

10 appropriately when completed in a fashion very

11 similar to what's outlined in Option D. We feel

12 that this is an effective means for ensuring that

13 CCRs are disposed of in a m anner safe to the

14 environment and do not feel there would be any

15 great useful gains through the implementation of

16 Option C.

17 In conclusion, we agree with NRECA and

18 many others who are already on record as opposing

19 Subtitle C approach, including a bipartisan of 165

20 members of Congress, 45 U.S. Senators, virtually

21 all states, other federal agencies and munici pal

22 and local governments, CCR marketers beneficial214

1 users' unions, state PUCs and many other third

2 parties. I appreciate y our time.

3 MS. DEVLIN: Thank you. Number 61,

4 please.

5 MR. ADAMS: My name is Mike Adams. I'm

6 with Headwaters Resources and I've been in the

7 coal ash recycling business for over 31 years.

8 I've seen the acceptance of coal ash grow from an

9 unwanted waste product to a very valuable resource

10 in many products such as concrete, concrete

11 masonry products, roof shingles, carpet backings,

12 wallboard and a multitude of other products.

13 I come today to urge the EPA to rule in

14 favor of the Subtitle D solid waste option in lieu

15 of Subtitle C hazardous designation. My main

16 premise is that the Subtitle D and Subtitle C

17 options provide essentially the same protection of

18 the environment. However, based on my exper ience,

19 I believe that the Subtitle C hazardous

20 designation will essentially eliminate any future

21 beneficial reuse of CCPs.

22 Coal combustion products when215

1 beneficially reused in the aforementioned products

2 provide numerous economical and environmental

3 benefits. The benefit of replacing Portland

4 cement with coal combustion products has been

5 documented and accepted by U.S. EPA and other

6 regulatory agencies. The replacement of Portland

7 cement with fly ash saves up to 15 million t ons of

8 carbon dioxide from being released into the

9 atmosphere annually. Fly ash reduces the cost of

10 concrete and allows smaller concrete producers to

11 compete with larger cement owned producers.

12 Concrete containing fly ash is stronger and more

13 durable, allowing locally produced concrete to be

14 utilized in lieu of imported steel and wood

15 products. The use of syntheti c gypsum in wall

16 board product, bottom ash is a light weight

17 aggregate, fly ash as a filler in asphalt roof

18 shingles and other beneficial uses of CCPs provide

19 similar carbon footprint reductions and cost

20 reductions.

21 It is my opinion as well as the opinion

22 of most of the coal ash industry that a Subtitle C216

1 designation by the U.S. EPA will result in a

2 significant and real stigma against the use of

3 CCPs in any products and eliminate any of the

4 environmental and economic advantage s of CCPs.

5 The stigma issue is real and is already occurring.

6 There are many documented cases where stigma

7 issues resulted in discrimination of CCPs or

8 specifying concrete or eliminati ng the use of fly

9 ash to eliminate possible liability issues.

10 Competitors of CCP producers are trying to gain

11 competitive advantage by highlighting possible

12 liabilities within their tr ade associations.

13 Nefarious court suits are being brought forth. An

14 example of this is a concrete customer of mine

15 that must remain nameless due to the ongoing suit

16 who's being sued b y a former employee claiming his

17 health problems were caused by fly ash even though

18 there's no documented evidence of fly ash causing

19 this and his lifestyle choices have direct links

20 t o this illness.

21 In summary, I ask the EPA to use common

22 sense and logic and not succumb to political217

1 pressure in making the decision on this issue.

2 Please take into account that the CCP problem is

3 an engineering problem and is addressed in

4 essentially the same manner by both Subtitle D and

5 C. Th ere's already evidence that a hazardous

6 designation will a ffect the use of CCPs,

7 eliminating the many environmental advantages of

8 CCPs, driving the cost of many building products

9 high er.

10 CCPs' beneficial reuse provides millions

11 of tons of C O 2 reduction. The continued

12 beneficial reuse of CCPs in an environmentally

13 safe manner eliminates the disposal o f a million

14 tons of CCPs annually. Common sense dictates that

15 the Subtitle D option is the correct and only

16 option for EPA. Thank you.

17 MS. DEVLIN: Thank you. At this time I

18 want to ask if there's anyone in the audience with

19 a number below 60 who wasn't here at their

20 original time and would like to come to the podium

21 now. Then I'm going to go to 62, 63 , 64 and 65,

22 please. Number 62?218

1 MR. SCOGGAN: Thank you for the

2 opportunity to speak here today. My name is Joh n

3 Scoggan. I work for a company called Boral

4 Material Technologies. We operate, market and

5 manage fly ash, principally selling fly ash into

6 Ready

- Mix concrete. Our company has been in

7 business for over 50 years and employs roughly 180

8 people.

9 In the beginning we handled less than

10 100,000 tons of fly ash and today we handle

11 approximatel y 5 million tons annually. We support

12 the EPA's effort to protect human health and the

13 environment. We don't want another disaster like

14 the Kingston spill. We don't want the EPA to

15 overreact due to the Kingston spill with the RCRA

16 Subtitle C rule. The problem at Kingston was a

17 disposal problem and not a problem with the

18 material itself. We feel that the disposal can be

19 handled properly with a Subtitle D nonhazardous

20 regulation. Fly ash has been used in the United

21 States since the 1920s. Over 25 years ago the

22 Federal Register encouraged the use of fly ash219

1 with any federally funded project with over

2 $10,000 in it. Today fly ash is accepted as a

3 routine product in concrete. Ther e is no pent

- up

4 demand for fly ash as the EPA's financial model

5 indicates. Concrete can be made without fly ash

6 if the Subtitle C goes through and the stigma

7 comes out.

8 The EPA has already reviewed coal

9 several times in both 1993 and 2000 and came to

10 the conclusion that it did not warrant the

11 hazardous label. Nothing has changed. The

12 c onstituents of fly ash have not gotten any worse.

13 The EPA believes that recycling won't hurt

14 concrete or the use of fly ash with Subtitle C for

15 disposal. We believe the EPA is wrong in this

16 assumption. The stigma is real.

17 If you watch TV, 60 Minutes has aired

18 two segments on how toxic coal ash is and has

19 questioned its safety in products with the clear

20 i ntent to scare consumers away from using these

21 products. Owners, material specifiers, engineers

22 and concrete producers will limit its use due to220

1 future legal liability exposure. Several

2 utilities that we deal with have already told us

3 they will limit or cease to allow recycling of

4 coal waste due to legal exposures.

5 Boral asks EPA to do the right thing,

6 regulate coal combustion residuals under RCRA

7 Subtitle D and avoid any reference to hazardous

8 waste. EPA's own scientific data says coal wast es

9 are nonhazardous. Under EPA's own admission, RCRA

10 Subtitle D with a nonhazardous label will provide

11 equal protection to public health and environment.

12 The U.S. is best se rved by continuing to

13 recycle coal. It's a success story. EPA has the

14 power to limit material going into landfills by

15 continuing the use of fly ash in concrete and

16 other products. Thank you for your time.

17 MS. DEVLIN: Thank you. Number 63,

18 please.

19 MS. EHRLICH: Good afternoon. My name

20 is Lori Ehrlich. I'm a State Representative from

21 Massachusetts for the 8th Essex District. I'm

22 here in three capacities. I'm here as a mother of221

1 two children who th rough their sooty footprints on

2 my white

- tiled floor brought my attention to the

3 issue of coal burning. What I want to do is share

4 a story with you that played out in Massachusetts

5 ba ck in 2000 and 2001 and I'll do it very briefly.

6 It's a very colorful story with lots behind it

7 which I will share in writing with you afterwards.

8 Wenham Lake is the drinking water for

9 three communities. Eighty

- thousand people drink

10 from this lake. The ice trade that used to exist

11 on Wenham Lake used to chop up the ice on the lake

12 in the winter and carry ice around the wo rld.

13 This was before the refrigeration. And Queen

14 Victoria actually used to insist upon Wenham Lake

15 ice in her drinks. It was known for its purity

16 and crystal

- clear appearance.

17 Come to find out that after the

18 construction in 1952 of a coal

- burning power plant

19 in our area, the solid waste left behind from this

20 power plant was dumped about 500 feet from t he

21 lake and over the half century that it sat there

22 it migrated into the lake, and we found out back222

1 in 2001 that it was 4 to 6 feet deep in this once

2 pristine drinking water source.

3 Using some help from one of the lake's

4 consumers, Jan Schlichmann who is here as well,

5 he's the attorney who was f eatured in a civil

6 action and played by John Travolta. This was his

7 drinking water supply. He and I co

- founded an

8 organization that drew the community together, we

9 got all of the sta keholders around a table and

10 negotiated the complete cleanup of the waste pit

11 that was now at the bottom of this drinking water

12 pit. It was not without some drama and some help

13 from t he press, but we had a success story which

14 also came at a cost. It was rumored to be about a

15 $10 million cleanup and it took about 6 years to

16 get this drinking water cleaned up.

17 As a State Representative, which I've

18 been for two years, I've proposed legislation. I

19 wrote legislation back in 2001 as a layperson and

20 for the last five 2

- year sessions my legislation

21 which is very similar to what we're considering in

22 the strongest version that EPA is considering has223

1 failed for 10 years now. I am b egging that EPA

2 step up and does this because it is so hard on

3 the state level to find the political will and the

4 ability to do this on the state level. I know how

5 hard it is to hear testimony and how it can be a

6 very long day, so I just want to thank you very

7 much. I left a lot out, but thank you.

8 MS. DEVLIN: Thank you. Number 64,

9 please.

10 MR. YODER: My name is Chris Yoder. I

11 live in Baltimore, and Baltimore has the community

12 of Curtis Bay in its southern suburbs that's an

13 old industrial town and has numerous contaminat ed

14 sites. There's a proposal to put a coal ash

15 disposal site in that community. North of

16 Baltimore and very close to the Susquehanna River

17 there's a proposal to put fly ash into an

18 abandoned quarry, again, just dumping it in and

19 filling it up.

20 The designation whether coal ash is a

21 hazardous substance and controlled as such should

22 depend in my opinion solely on the question of is224

1 it hazardous, does it contain hazardous materials?

2 If the answer to that question is yes then it

3 should be controlled as a hazardous substance.

4 And the answer to that question is yes. We know

5 that.

6 The prescription is clear: federally

7 enforceable stand ards with permits and subject to

8 inspection, monitoring and accountability for

9 outcomes. I'm a retired federal employee and my

10 experience taught me that you can't control what

11 you don 't measure and you can't measure what you

12 don't monitor. It's important that the standards

13 be federally enforceable. Requiring or allowing

14 citizen lawsuits is simply to abrogate our

15 society's responsibility to protect its citizens

16 from harmful substances and actions. Standards

17 without accountability don't work. Guidelines

18 don't work. As a personal example, I've been

1 9 applying dietary guidelines for losing weight for

20 the last 20 years, and I'm 20 pounds heavier. I

21 ate too many pieces of pizza for lunch today.

22 That's because while I have good intentions, those225

1 standards are not enforceable unless I enforce

2 them. So mandatory standards, measurement and

3 consequences for unsatisfacto ry outcomes by an

4 independent body charged with protecting our

5 environment, that's you EPA and I think that

6 argues for regulation under Subtitle C. Thanks.

7 MS. DEVLIN: Than k you. Number 65,

8 please.

9 MR. ANGER: My name is Donald Anger.

10 I'm the Operations Manager for a precast concrete

11 company called Americast, Incorporated. We're a

12 small business. We have eight producing plants in

13 Virginia, West Virginia and South Carolina. I'm

14 also the President of the Precast Concrete

15 Association of Virginia.

16 We have nine producer members, all the

17 same as Americast, small businesses trying to

18 survive this construction economy that we're in.

19 We manufacture reinforced concrete pipes, sanitary

20 and storm manholes, structures for the

21 infrastructure, three

- sided bridges and retaining

22 walls. All of these products are made of concrete226

1 obviously and they all have cement in them. We

2 substitute anywhere from 15 to 30 percent of our

3 cement with fly ash. This fly ash is hauled to us

4 in confined containers, it's stored in silos and

5 encapsulated in the concrete after the

6 manufacturing process. The fly ash is very

7 beneficial to our industry both economically

8 because it reduces the cost of our product s. If

9 we have to go back to straight cement

- concrete,

10 again our costs will increase.

11 It also enhances the performance of the

12 concrete, creating better concrete and makes it

13 more durable and less permeable. The current

14 specifications in Virginia and surrounding areas

15 require the use of fly ash in our concrete. That

16 is part of the AASHTO specifications and VDOT

17 specifications in several sanitary districts.

18 Using fly ash replaces the cement in the product

19 and by doing that we keep fly ash out of the

20 landfills and the fill areas that the others are

21 talking about. If fly ash is labeled as a

22 hazardous waste, our green advantage goes away.227

1 All of my green

- l abeled products are committed to

2 no hazardous materials in the concrete. The

3 stigma associated with a hazardous waste tag on

4 fly ash will cause severe economic impact to my

5 business a nd our industry. Thank you for the time

6 to speak.

7 MS. DEVLIN: Thank you. Numbers 66, 67,

8 68 and 69, please. Number 66?

9 MR. SLESINGER: My name is Scott

10 Slesinger. I am the legislative director of the

11 Natural Resources Defense Council. I will address

12 the so

- called stigma issue. Having spent more

13 than 10 years working for the hazardous waste

14 disposal industry, I notice that hazardous waste

15 disposal companies that operated Subtitle C

16 facilities lost market share over time to

17 recyclers and beneficial users. Market economic s

18 makes this obvious. The higher cost of disposal

19 led to finding cheaper alternatives. So despite

20 the concern of every regulated industry that a

21 stigma would attach if EPA regulated their waste

22 as a hazardous waste, the market soon proved228

1 otherwise and beneficial uses went up. This will

2 be especially th e case with fly ash where EPA has

3 used the special waste terminology and

4 specifically avoided the dreaded term hazardous

5 for disposal, and clearly for the first time

6 specifically avoid ed any change to the regulations

7 to the material that is going to be used

8 beneficially.

9 Some argue that the market has already

10 been affected by the pre

- proposal statements of

11 EPA. If there has been an effect, the negative

12 impact was ginned up by the utilities and the fly

13 ash recyclers essentially trying to poison the

14 market for their own product. It is a s if Coke

15 said we put rusty nails in Coke; that would

16 probably hurt Coke sales.

17 Of course the utilities' concern is not

18 really fly ash recycling. Their concern is having

19 to dispose of the toxins that they took out of

20 their stack emissions, collected in the ash and

21 now have a difficult time arguing that the toxic

22 ash should be handled as nontoxic waste lik e229

1 kitchen garbage. Therefore, they have created the

2 red herring of stigma.

3 A survey by NRDC shows that of compan ies

4 that use fly ash, over 69 percent will continue to

5 use it even if it is hazardous. I'm sorry, that

6 was not an NRDC survey, but a survey of the NRMCA,

7 the National Ready

- Mix Concre te Association

8 echoing the survey of the National Precast

9 Concrete Association whose survey in July 2010

10 showed that 84 percent of their members will

11 continue to use fly ash even if th e waste was

12 regulated under Subtitle C. I'm sure though that

13 future surveys released by opponents of the EPA

14 option, at least those that are released to the

15 public, will be more in li ne with their lobbying

16 campaign that the regulation would kill fly ash

17 recycling. NRDC and its 1.3 million supporters

18 urge the EPA and the Administration to as quickly

19 as possible iss ue the final rule under Subtitle C.

20 Thank you.

21 MS. DEVLIN: Thank you. Number 67,

22 please.230

1 MR. ISA: First of all, I want to thank

2 you for giving me the opportunity to speak here

3 today. My name is Ulber Isa. I'm the Operations

4 Manager for Essex Cement located in Newark, New

5 Jersey, and I'm here to oppose the EPA ruling

6 classifying fly ash as a hazardous material.

7 Given the time I have, I'll try to make three

8 points to the audience and to you so you can

9 hopefully make the right decision.

10 One is how does science classify fly

11 ash? How is fly ash disposed of currently? What is

12 the trend? And is there any benefit of disposing

13 of fly ash and recycling fly ash or not? From my

14 research, I found out the University of North

15 Dakota Coal Ash Research Department has done

16 extensive research on this issue and they posted

17 all their findings on the web site so that if

18 anybody interested, they can go and do more

19 research on their own. Their research today shows

20 that fly ash is benign and does not qualify as a

21 hazardous waste based on its toxic

22 characteristics, and this is scientific data we're231

1 talking about. Per their research, the chemical

2 constitutes of coal ash are commonly found in many

3 everyday products and natural materials. They are

4 present in soil, rock and other parts of the

5 Earth's crust. Again th is is scientific data and

6 I want to emphasize this because it's not opinion.

7 The EPA actually ruled the same way on August 9,

8 1993, and also May 22, 2000, so that basically the

9 EPA sup ported this decision.

10 It is very important to note that no

11 damage cases are related to beneficial use of coal

12 ash as of year to date. This whole thing started

13 with the Kings ton, Tennessee, issue and it's

14 important to separate the issue because the

15 Kingston, Tennessee, damage case is related to

16 engineer failure and not the material that's

17 involved. The sa me thing might be like saying

18 we're building a 20

- story building, we have no

19 foundation and we blame the concrete for not

20 supporting the building because the building falls

21 down. That has nothing to do with the material,

22 but it has to do with engineering failure and232

1 that's very important.

2 As for disposal, in 2008 utilities

3 generated 136 million tons of coal ash combustion

4 products which is the second largest waste. In

5 2000 only 30 percent was used in recycling, in

6 2008 44 pe rcent was used and that's 60 million

7 tons, basically a 33 percent increase.

8 In Europe, 100 percent of fly ash is

9 recycled. Why do I bring this up? Every time you

10 recycle fl y ash, it reduces C O 2 emissions, and

11 basically year to date you can reduce by 20 to 25

12 percent the greenhouses. In 2008, 12 million tons

13 of greenhouse gas was reduced. Isn't that our

14 mission? Since 2000, 117 million tons of

15 greenhouse gas is reduced.

16 As for data, the electric power

17 utilities did research and this is the data they

18 found, 159 trillion BTUs saved, 32 billion gallons

19 of water saved, 12 million pounds of C O 2 saved and

20 51 million cubic yards of landfill space. If we

21 cannot recycle fly ash, we're going to end up in

22 the landfill. Quickly I just want to go through233

1 the benefits.

2 MS. DEVLIN: I'm sorry, your time is up.

3 MR. ISA: I know, time is up, but I want

4 to emphasize there's a benefit of recycling fly

5 ash. Thank you.

6 MS. DEVLIN: Thank you. Number 68,

7 please.

8 MR. OLIVO: Good afternoon. My name is

9 Don Olivo. I'd like to thank you all for allowing

10 me to speak this afternoon to you. I have been in

11 the cement industry for 27 years. I am with the

12 Essex Cement Company in Newark, New Jersey whose

13 parent is Titan America. I am the dispatcher at

14 Essex Cement and also the labor union

15 representative for all the members of the

16 International Longshoremen's Association.

17 I support coal ash disposal regulations

18 that protect human health and the environment

19 while encouraging greater recycling the fly ash.

20 These goals cannot be reached if the EPA

21 designates coal ash a hazardous special waste.

22 People will not want material in their homes,2 34

1 schools and neighbor hood s if it is considered

2 hazardous in a landfill. Businesses will not want

3 to risk being sued for using a material that is

4 considered hazardous in a landfill. We risk

5 losing the environmental benefits that come along

6 with recycling millions of tons of this material.

7 If the EPA designates coal ash as a

8 hazardous waste, the entire i ndustry will be

9 affected. I speak for myself and the people who I

10 work with and report to me when I state there will

11 be families greatly affected. Many jobs will be

12 lost. The cement and concrete industry will be

13 set back substantially. Please consider the

14 effect of this ruling on all the people involved,

15 the workers, their families, children and

16 grandchildren.

17 I deal directly with our customers and

18 truckers. We deliver fly ash in the most

19 difficult traffic zones and conditions in the

20 nation. We have had breakdowns, accidents and

21 delays throughout the five boroughs of New York

22 and New Jersey. Never in all the years of235

1 handling ash have we ever had an incident relating

2 to a hazardous material situation.

3 Why do producers use fly ash? It has

4 fresh concrete advantages, sustainability, reduces

5 material cost of concrete, longe r lasting

6 structures and it reduces waste. I have witnessed

7 over time some of our concrete customers being

8 introduced for the first time to fly ash in their

9 businesses. The positive outcome was remarkable.

10 The finished material they produced was superior.

11 The cost was significantly reduced. The

12 environmental advantages were greatly beneficial.

13 The effective elimi nation of fly ash incorporated

14 into concrete would be a major step backward in

15 the nation's efforts to provide a more sustainable

16 infrastructure. Please consider this, and I thank

17 you

.

18 MS. DEVLIN: Thank you. Number 69,

19 please.

20 MR. LYONS: Good afternoon. My name is

21 Bill Lyons. I am currently the Executive Director

22 of the Co ncrete Industry Board of New York. The236

1 New York City Concrete Industry Board is a

2 nonprofit concrete educational organization

3 founded in 1951 and a chapter of the American

4 Concrete Institute with a mission to educate,

5 inform and certify those involved in all aspects

6 of the concrete industry.

7 My experience includes 15 years with a

8 major concrete add mixture manufacturer, over 5

9 years with Separation Technologies, a Titan

10 America company, and over 4 years with a national

11 concre te Ready

- Mix company prior to joining the

12 Concrete Industry Board. I was president of two

13 and vice president of one chapter of ACI and I'm a

14 fellow of the institute. Several ACI committees I

15 am on include ACI 232, Fly Ash and Concrete.

16 Throughout my career I have spent

17 considerable time consulting with the design

18 community including structural engineers, owners

19 and developers including public agencies, general

20 contractors and concrete producers in the

21 promotion of quality, high

- performance concrete.

22 This includes the addition of fly ash concrete237

1 into mixes. Fly ash uses in the Metropolitan New

2 York City area are numerous. It is used

3 continuously in the construction of hi gh

- rise tall

4 building development. Because fly ash reacts with

5 the unhydrated cement, it creates a better bonding

6 concrete that without its use concrete's high

7 strengths would not be attained. Fly ash is also

8 used in concrete mixes for our streets, bridges

9 and parking structures, not only in the

10 Metropolitan New York area, but every single one

11 of the towns and cit ies and states that are in the

12 union.

13 The purpose is for the durability

14 benefit it offers. Longer

- lasting structures can

15 be obtained with the addition of fly ash in the

16 mixes. Fly ash has been used successfully in

17 concrete for over 30 years in the New York City

18 Metropolitan area well before the term green

19 became a symbol for sustainability. Back then it

20 was just another color in the rainbow. I feel it

21 would be an injustice to landfill the 50 million

22 tons of fly ash annually used in concrete238

1 products. For a product that has been used in the

2 construction of the Hoover Dam back in the late

3 1920s to early 1930s, I encourage the EPA to

4 listen to the concret e construction industry and

5 deem fly ash a nonhazardous material. Let's go D.

6 Thank you.

7 MS. DEVLIN: Thank you. I'm going a

8 little bit out of order now, so everyone listen

.

9 Number 156, number 165, number 93 and number 126.

10 Are any of you guys here?

11 MS. BICK: Yes. I'm really surprised

12 and delighted. Thank you very much. My name is

13 Bonnie Bick and I'm a citizen in Maryland and I'm

14 here because I'm very concerned about the

15 Brandywine fly ash landfill and the Faulkner

16 landfill. Both of them are unlined landfills that

17 are leaking and there are MDE, Maryland Department

18 of Environment, lawsuits and citizen lawsuits on

19 these issues.

20 I'm very upset about the beneficial

- use

21 aspect because it's taken out of our scrubbers,

22 and I think once we've got it, we should contain239

1 it. We don't want it in our air, we don't want it

2 distributed, we want it contained. So my urging

3 is that you will try to avoid the externalities

4 that are being created by distributing this fly

5 ash. It needs to be properly sequester ed and

6 taken out of our environment and I'm asking you to

7 think of our grandchildren because not to use fly

8 ash beneficially sounds good, but the beneficial

9 way to do it is when you ha ve it, contain it and

10 use it as a toxic waste which it is. So I support

11 the Subtitle C designation and I think that we can

12 all benefit from having the EPA step up to the

13 plate and tak e responsibility. Thank you very

14 much.

15 MS. DEVLIN: Thank you. Are numbers

16 165, 93 or 126 in the room? I'm going to go back

17 now to 70, 71, 72 and 73.

18 MS. TRAVIS: Good afternoon. I'm going

19 to speak in my most rapid New York voice to try

20 and say as much as I can in 3 minutes and I'm

21 going to skip a few things so hopefully it'll be

2 2 coherent. At the most recent meeting of the240

1 National Environmental Justice Advisory Council in

2 July of which I am a member, U.S. EPA l eadership

3 presented a significant document to the FACA for

4 consideration and comment. The document is called

5 "Plan Environmental Justice 2014" and incorporates

6 several components that are intended to move the

7 A gency forward to develop stronger relationships

8 with communities and increase the A gency's effort

9 to improve the environmental conditions and public

10 health in overburden communities. Plan EJs 2014's

11 five critical components are incorporating

12 environmental justice into rulemaking, considering

13 environmental justice concerns in EPA's permitting

1 4 process, accelerating compliance and enforcement

15 initiatives, supporting community

- based action

16 programs and fostering administration

- wide action

17 on environmental justice. The fact that

18 incorporating environmental justice into agency

19 rulemaking is listed as the first critical

20 priority of Plan EJ 2014, speaks volumes to this

21 proceeding today and to its overall importance to

22 achieving the A gency's and Administrator Lisa241

1 Jackson's goal for achieving and advancing

2 environmental justice across the A g ency.

3 As Vice Chair of the Maryland Commission

4 on Environmental Justice and Sustainable

5 Communities, issues of environmental justice,

6 ecological degradation and disproportion ate human

7 health impact in our state are of great concern to

8 me. Maryland is home to multiple co al combustion

9 waste sites that have contaminated drinking water

10 wells and polluted su rface waters and the

11 environment with arsenic, cadmium, selenium,

12 nickel, thallium and other toxic pollutants. In

13 2008 a major energy producer in our state entered

14 into a multimillion

- dollar settlement agreement to

15 clean up arsenic, cadmium and other pollutants in

16 drinking water wells. The State of Maryland has

17 taken enforcement action against other power

18 companie s and two of its subsidiaries for Clean

19 Water Act violations at the Faulkner Coal

20 Combustion Waste Facility in Charles County,

21 Maryland. We also have problems in Brandywine,

22 Maryland, and Prince Georges County, not far from242

1 the town where I live.

2 I want to speak a little bit to

3 environmental jus tice. Low

- income communities in

4 Maryland need EPA to regulate coal ash under

5 Subtitle C of RCRA as special waste with all the

6 atten ding safeguards that apply. Airborne

7 issues. Harmful clouds of airborne coal ash

8 pollute communities and put them at great risk.

9 The nation's 495 coal

- fired power plants generate

10 over 140 million tons of coal ash annually. The

11 s torage, disposal and transport of this ash can

12 pose significant health hazards. However, no

13 federal standards exist to require polluters to

14 control the harmful air emissions from dump sites

15 despite the fact that EPA itself has documented

16 that coal ash contains toxic materials and those

17 toxicants can and do escape disposal sites.

18 Lastly, water quality. Few coal

19 combustion waste disposal sites are subject to

20 Clean Water Act permits that monitor or limit the

21 full range of toxic metals that are discharged

22 from coal combustion waste disposal sites. At a243

1 minimum, EPA must take basic steps to protect the

2 off

- site environment at coal combustion waste

3 sites and set limits on the d ischarge of leachate

4 or waste water that are based on best available

5 treatment and containment standards and which are

6 designed to protect rivers and streams. This is

7 particularly imp ortant in a state like Maryland

8 where rivers and streams empty into the

9 ecologically fragile and highly threatened

10 Chesapeake Bay. For these reasons and so many

11 more, I support Subtit le C.

12 MS. DEVLIN: Also could you please state

13 your name for the record?

14 MS. TRAVIS: Vernice Miller Travis, Vice

15 Chair, Maryland Commission on Environmental

16 Justice and Sustainable Communities and a member

17 of the EPA National Environmental Justice Advisory

18 Council. Thank you.

19 MS. DEVLIN: Thank you. Number 71,

20 pleas e.

21 MR. McNELLY: As Executive Director of

22 ARIPPA, my comments today represent the voice of244

1 over 10,000 citizens w ho are directly or

2 indirectly employed by our industry and I live and

3 work where CFB coal ash is and has been generated

4 and beneficially used for over two decades.

5 ARIPPA is a nonprofi t association representing

6 alternative energy generating plants. EPA's

7 motivation to propose these rules appears to be

8 based on what EPA has termed proven damage cases,

9 citing two ash impoundment accidents at Kingston,

10 Tennessee, and Martins Creek, Pennsylvania. This

11 is in spite of the fact that a thorough study of

12 the Martins Creek accident found no adverse

13 impac ts to the river, wildlife or human health,

14 and that the Tennessee Department of Health found

15 no significant human health impacts due to the

16 Kingston accident. These findings combined with

17 safe management of the vast majority of ash sites

18 and the beneficial uses clearly indicates that EPA

19 is acting in a capricious manner. EPA's true

20 motivation to propose these rules appears to be

21 based on political media appeasement versus

22 scientific fact.245

1 EPA appears to be only overly influenced

2 by certain special interest anti

- fossil fuel

3 groups that have never directly managed ash. An

4 ash accident may be a legitimate reason for EPA to

5 propose regulatory improvements pertaining to wet

6 ash disposal impoundments. However, it is

7 unreasonable to propose rules that declare all ash

8 hazardous and drastically limit its many current

9 beneficial uses. While EPA cites the NRC

- N A S

10 study concerning ash in i t s preamble, it ignores

11 its scientifically based factual findings which

12 include, one, enforceable federal standards should

13 be established to ensure that st ates have specific

14 authority and implement adequate safeguards; two,

15 primary regulatory mechanisms should be used to

16 develop enforceable standards are SMCRA, joint

17 OSM

- EPA rules, or RC RA D rules. Beneficial use of

18 ash should be strongly encouraged. Government

19 agencies should examine ways in which they can

20 promote ash use or remove impediments to its use.

21 Number fo ur, placement of ash in mines should be

22 based on an integrated process of ash246

1 characterization, site characterization,

2 mana gement and engineering, design of placement

3 activities and design and implementation of

4 monitoring.

5 Since 1985 Pennsylvania DEP has provided

6 oversight on the beneficial use o f coal ash for

7 mine reclamation and other uses. PA DEP's 25

- year

8 scientific technical findings include, one,

9 allegations that ash causes pollution are

10 seriously flawed. Two, ash plac ement has not

11 caused water

- quality degradation. In fact, in

12 some instances significant improvements have

13 occurred. EPA should consider the negative

14 implications of classifying all co al ash as

15 hazardous. One, the CFB ash will not likely meet

16 encapsulation recycling use standards. Two,

17 industry ash management costs will increase by

18 more than 31 times, exceeding re venue by $40 to

19 $50 per megawatt hour. Our industry would operate

20 at a loss. Accordingly, it would cease to exist.

21 Thousands of workers will become unemployed. Ten

22 percent of our re gion's electric energy will be247

1 gone. Land/stream reclamation benefits which to

2 date include thousands of acres and hundreds of

3 miles of streams will vanish.

4 In summary, we are aware that certain

5 special interest groups have lobbied their

6 opinion that classifying coal ash as hazardous

7 will i ncrease beneficial uses.

8 MS. DEVLIN: Excuse me, your time is up.

9 MR. McNELLY: Thank you.

10 MS. DEVLIN: Could you please state your

11 name for the record? I think we got your

12 affiliation, but I don't think we got your name.

13 MR. McNELLY: My name is Jeff A.

14 McNelly. Did you want handouts or anything?

15 MS. DEVLIN: If y ou have them, we'll

16 take them and put them in the record, certainly.

17 Thank you. Number 72, please.

18 MR. ACKERMAN: My name is Frank

19 Ackerman. I'm an economist at Tufts Unive rsity.

20 I'm going to submit longer written comments, but I

21 want to make one point about the economic analysis

22 today which is that it i s crucial to reject the248

1 treatment of stigma and the calculation of

2 stigma

- related losses in EPA's Scenario 2 in the

3 RIA. That scenario assumes that the stigma of

4 Subtitle C regulation would eliminate half of the

5 market for reuse of coal ash even though reuse is

6 clearly exempt from that regulation.

7 There are three reasons to reject stigma

8 as see n in Scenario 2. First, it is not supported

9 by logic, econom ic theory or legal precedent. The

10 stigma in Scenario 2 rests entirely on the

11 incorrect belief that beneficial reuse of CCRs is

1 2 described as hazardous waste.

13 Since the buyers of CCRs are companies

14 and not individuals, they should realize that it

15 remains legal and profitable to use CCRs. If they

16 do not realize that, they would be expected to

17 lose market share to companies that do realize it

18 and profit from continued use of CCRs. That's one

19 of the virtues of a market economy. The stigma

20 notion may stem from the negative publicity

21 surrounding the Kingston spill in December 2008,

22 but the recent dip in the reuse of CCRs is due to249

1 the economic slump which has dragged down the

2 construction industry. The tonnage of beneficial

3 reuse outside of mining started to go down in

4 2008, too early to be affec ted by Kingston but

5 matching the timing of the recession.

6 The second point is that the estimates

7 of stigma losses in the EPA analysis are purely

8 arbitrary without even a pret ense of empirical

9 support. Why should 50 percent of one sales

10 category or 80 percent of another be lost? Why do

11 these losses persist unchanged for 50 years rather

12 than fading over ti me as real stigmas typically

13 do? This level of imprecision would be laughed

14 out of the room in a debate about health hazards,

15 cancer risks or anything else where real

16 information exis ts. Far from providing empirical

17 support for the stigma numbers, the EPA expresses

18 its disbelief in these estimates and provides

19 extensive evidence that there i s no stigma

20 preventing beneficial reuse of many Subtitle C

21 wastes. The contrary argument in Scenario 1 is

22 more logical and carefully supported with real250

1 empirical data. The desire to avoid increased

2 disposal costs under Subtitle C regulation would

3 actually increase reuse. Finally, consider the

4 precedent for other regulation that would be

5 created by stigma

- based regulation of CCRs. The

6 stigma losses are said to be more than 10 times

7 the direct costs imposed by Subtitle C. So for

8 the next regulation why bother thinking abo ut the

9 details of real costs and benefits? Just tell a

10 story about the value of unfounded fears.

11 Monetizing stigma

- based losses that might be

12 caused by fear of regulation is an argume nt

13 against any regulation any time. Should all

14 carcinogens be declared safe in order to avoid

15 stigmatizing them and reducing their sales? If

16 allowed, this absurd approach would win e very time

17 especially if it uses arbitrary estimates of

18 stigma losses with no empirical support as is done

19 in Scenario 2. Thank you.

20 MS. DEVLIN: Thank you. Number 73,

21 please.

22 MR. DULANEY: Good afternoon. Brian251

1 Dulaney with Separation Technologies. I'm a sales

2 rep. I sell processed fly ash in the mid

- Atlantic

3 region. Although I can't say I am against

4 regulation, I certainly applaud the EPA's efforts

5 to ensure a safe environment for my children to

6 grow up in, and I appreciate that. I do fear, not

7 to I guess beat a dead horse, the stigma of it. I

8 appreciate the studies the previous speakers spoke

9 of. I don't have access to those studies. A ll I

10 know is the conversations I've had with local

11 decision makers in their businesses and they are

12 very fearful that their transportation costs will

13 increase, the costs for making the product will

14 increase and that's what troubles me. That's

15 where my worries lie.

16 I am very proud of my job and what I do

17 in keeping fly ash from the landfills, last year

18 150,000 tons roughly out of the landfill directly.

19 I would like to take credit for it in selling to

20 the customers, and that's just why I am opposed to

21 the hazardous designation. Do whate ver you need

22 to do to it, just let's make sure we're keeping it252

1 out of the landfills and I just think saying it's

2 hazardous is going to really prevent me from doing

3 that. Thank you.

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

5 out of order again and try calling a couple of

6 numbers that I had called before, 165, 93, 126 and

7 142. None of you are here. I'm going to try 204,

8 206, 207 and 208. If none of you guys are here,

9 how about 74, 75 and 77?

10 MR. SHAW: My name is To m Shaw and I am

11 Director of Sales for Harsco Minerals, a division

12 of the Harsco Corporation based in Camp Hill,

13 Pennsylvania. Harsco Minerals operates 15 boiler

14 slag processing plants throughout the Eastern

15 United States. For more than 70 years we have

16 been a green recycler of boiler slag, producing

17 mainly abrasives under the Black Beauty trade name

18 and roofing gr anules for roofing shingles. Harsco

19 Minerals employs approximately 500 employees and

20 generates much needed revenue in many rural areas.

21 Almost all of our business is built on the

22 bene ficial reuse of coal slag.253

1 The facts demonstrate that there is no

2 reasonable basis for subjecting boiler slag to

3 regulations under RCRA Subtitle C, not even as a

4 special waste. When extremely hot, molten coal

5 ash is quenched with cold water and the coal ash

6 immediately becomes vitrified into an amorphous,

7 solid and glassy matrix known as boiler slag.

8 Because boiler slag is vitrified, it is very

9 durable and an environmentally stable material

10 that permanently immobilizes the chemical

11 constituents into a glassy amorphous structure.

12 Boiler slag makes up only 2 percent of coal

13 combustion byproducts and the vast majority of it

14 is recycled into valuable reusable products.

15 Because it is beneficially reused, boiler slag is

16 not commonly stored in surface impoundments.

17 Historically, our boiler slag has always passed

18 the TCLP and has never exhibited any

1 9 hazardous

- waste characteristics. Our testing of

20 pre

- and post

- blast boiler slag using the EPA

21 standard TCLP has confirmed that the resulting

22 leachate meets drinking water standards. The254

1 scientific information about boiler slag and its

2 physical properties have not changed since we

3 began our operations 70 years ago. Regulating

4 boiler slag destined for disposal is a special

5 waste under Subtitle C would unfairly stigmatized

6 beneficially reused boiler slag.

7 Already, competitors have been us ing

8 EPA's proposal to attack our products and try and

9 take business away from us, not based on

10 performance or value for the customer, but merely

11 on stigma. Customers and consumers wil l continue

12 to be confused and concerned about purchasing and

13 using products that seem to be essentially the

14 same as a Subtitle C waste. We have seen no

15 evidence that boiler slag meets any threshold for

16 regulation under Subtitle C. We are not aware of

17 any environmental problems linked to our products.

18 Boiler slag has been used since the 1930s as an

19 abrasive in lieu of sand which is an abrasive that

20 presents serious work or health concerns. We

21 recognize the need for proper and environmentally

22 sound standards for regulating the small255

1 percentage of boiler slag that is discarded rather

2 than beneficially reused. Accordingly, consistent

3 with the announced views of nearly 30 states and

4 EPA's own two previous determinations evaluating

5 proper management of CCR s, we support appropriate

6 and reasonable disposal standards for any waste

7 boiler slag under Subtitle D of RCRA. Thank you.

8 MS. DEVLIN: Thank you. Number 75,

9 please.

10 MR. BESA: Good evening, my name is Glen

11 Besa. Actually I guess it's afternoon. My name

12 is Glen Besa. I'm the Director of the Sierra

13 Club, Virginia Chapter, representing 15,000

14 members of the Sierra Club in the State of

15 Virginia.

16 The burning of coal is the larg est source

17 of electricity in this country. Why is that?

18 It's because it's the cheapest fuel. Why is it

19 the cheapest fuel? Because utilities have been

20 able to shift the costs associa ted with cleaning

21 up coal to the public, and that's the cost of air

22 pollution, the cost of water pollution, the cost of256

1 mou ntain top removal coal mining and all the costs

2 associated with coal ash. This subsidization of

3 coal makes it that much harder for renewable

4 energies to compete. The utilities should not

5 have the right to poison people's wells with coal

6 ash just to shave a small amount of the cost off

7 electricity. Utilities should have to pay the

8 full cost of disposing of coal ash responsibly.

9 If coal cannot compete because of this th e n

10 cleaner forms of energy will take its place and

11 will not only address the issue with regard to

12 coal ash, but will begin to address the issue w ith

13 regard to climate change and also all the air

14 pollution associated with burning coal that puts

15 so many people in the hospital each summer. So it

16 comes down to a small cost of hand ling this waste

17 responsibly versus public health and that should

18 not be a contest. Where is this stuff dumped?

19 Generally in poor neighborhoods, urban and rural

,

20 and this is environmen tal injustice. The

21 executives of these utilities would not want this

22 waste in their back yards and they would not want257

1 the ir children to drink the water contaminated by

2 the coal ash. But they can afford to live

3 elsewhere, the people in poor communities cannot.

4 There is no consistent regulation among

5 the states with regard to coal ash and there's no

6 consistent regulation within the State of Virginia

7 with regard to coal ash. I live in Chesterfield

8 County, home of the largest coal plant in

9 Virginia, Dutch Gap, and that plant has a large

10 unlined pond which they continue to maintain.

11 They're up for a new N PD E S permit on that.

12 Currently they do not monitor for any of the toxic

13 heavy metals that are discharged into the James

14 River from that site.

15 Throughout Virginia there are wells

16 contaminated by coal ash. The monitoring wells

17 w ith landfills that include coal ash, when they

18 are determined to have some toxic chemical in them

19 as a result of testing

, are simply reclassified as

20 assessment wells so that once they're a monitored

21 well and you determine there are toxins in them

22 and they reclassify them as an assessment well,258

1 then they don't do anything ab out it. They just

2 watch it. This is really an irresponsible

3 situation, and the way we handle coal ash in this

4 country is irresponsible. I urge you to regulate

5 coal ash under Subtitl e C of RCRA as a special

6 waste. Thank you so much.

7 MS. DEVLIN: Thank you. Number 77,

8 please.

9 MS. MOSS: Good afternoon. My name is

10 Susan Moss and I'm a resident of Surry County,

11 Virginia. In the past 2 years I have gone to

12 meetings in Surry County, Virginia

, for the permit

13 process to build the largest coal processing plant

14 in Virginia. I have not spoken at these meetings.

15 I took notes. At these meetings my novice

16 observations at the lack of protection for the

17 proposed coal ash has compelled me to come today

1 8 and request strict limitations be placed on the

19 disposal of coal combustion residuals from

20 electric utilities to protect our country's water

21 and air.

22 Seeing and reading about past problems259

1 with disposal of the byproducts from processing

2 coal and understanding that the new plants will

3 have m ore toxic chemicals in the coal combustion

4 residuals, it is imperative to take strong action.

5 Please be aggressive now to secure the future. I

6 have never lived near a coal processing plant and

7 never taken the time to understand the process.

8 Now that I am informed on the subject, I see the

9 need for caution and look to you for guidance.

10 Thank you.

11 MS. DEVLI N: Thank you. Number 147 and

12 number 105 are not here.

13 MR. DURNING: I'm 105.

14 MS. DEVLIN: Thank you, great.

15 MR. DURNING: Good afternoon. My name

16 is Matt Durning. I'm an independent documentary

17 filmmaker. I'm speaking today on behalf of myself

18 and my co

- producer, N'Jer Eaton who is here with

19 us today as well. From August 2009 thro ugh May

20 2010 my classmate and I reported on the story

21 unfolding in Perry County, Alabama, where the

22 spilled coal ash waste from Kingston, Tennessee260

1 had been dumped at the Arrowhead Landfill in

2 Uniontown, and this landfill is literally within a

3 few hundred feet of the homes of residents who

4 have lived in th is area for generations.

5 The Arrowhead facility started accept ing

6 this toxic waste despite the significant

7 opposition from the majority of local residents in

8 Perry County. The result of our reporting was a

9 27

- minute documentary entitled Perry County which

10 we're hoping to submit to the public record today

11 along with our testimony. We hope that you and

12 t he other members of the EPA and your colleagues

13 will take the time to watch this 27

- minute film

14 about the situation in Perry County and the

15 environmental injustice there before ruling on

16 this important issue.

17 The situation in Perry County is a prime

18 example of why the U.S. is in such desperate need

19 of strong federal regulation on coal ash. As a

20 result of the absence of federally enforceable

21 protections, the Alabama Department of

22 Environmental Management or ADEM, local Perry261

1 C ounty politicians, and landfill owners and operators

2 in Uniontown were able to secure this contract to

3 bring the waste from Kingston and dispose of more

4 than 3 million tons of coal ash in Perry County a t

5 a landfill that was designed only for household

6 garbage. The only way to protect the residents of

7 Perry County and other communities across this

8 country is to be regulating coal ash disposal

9 under Subtitle C of the Resource Conservation and

10 Recovery Act.

11 While the Arrowhead Landfill is deemed

12 "state

- of

- the

- art" by local politicians and

13 landfill officials, in our reporting there we have

14 witnessed conditions on the ground

, which give us

15 great cause for concern and we think should give

16 you cause for concern as well. For at least the

17 last 6 months a mountain of coal ash has been

18 rising behind the tree line that has sat uncovered

19 only a few hundred feet from residents' homes.

20 This is clearly increasingly the likeli hood that

21 fugitive ash and dust will be blown off

- site and

22 could end up in the lungs and water sources of262

1 local residents.

2 Although the landfill is equipped with a

3 liner system which they also call state

- of

- the

-

4 art, we know for a fact that contaminated water

5 has flowed from the landfill proper ty into

6 roadside ditches and creeks which feeds into local

7 water sources. In this community many of these

8 folks are on personal wells and we know that the

9 homes near the landfill get their drinking water

10 from water that is directly tied to the creeks and

11 roadside ditches that are basically being fed from

12 this contaminated water from the landfill. Most

13 of the peopl e living in this community in Perry

14 County, Alabama

, are poor and African

- American and

15 like the majority of Perry County,

16 disenfranchised. They fought hard to stop the

17 original landfi ll construction and the coal ash

18 contract but every step of the way the system just

19 failed them. A few local politicians have strong

-

20 armed the coal ash contract and squelched

21 opposit ion. They have silenced the very people

22 they were elected to represent.263

1 The people of Perry County are an

2 exampl e of the most vulnerable victims of weak

3 federal coal ash legislation. Unfortunately,

4 there are so many other communities like them

5 across the U.S. suffering from the same thing,

6 impr oper disposal of this toxic waste. Time and

7 again states like Alabama have put communities at

8 risk. Without any support from their elected

9 officials and scant resources to effectively fight

10 this dumping, they desperately need real and

11 lasting support from the federal government and

12 the only way to ensure this and ensure that they

13 are protected is by regulating coal ash under

14 Subtitle C. Thank you very much.

15 MS. DEVLIN: Thank you. Number 204,

16 206, 207 and 208. I'm going to keep calling, 209,

17 210, 211, 212 and 213.

18 MS. CHI N: I'm 211.

19 MS. DEVLIN: 211? Great. Thank you.

20 MS. CHIN: You got to me sooner than I

21 expected, but that's great. My name is Allison

22 Chin. I want to thank you for the opportunity to264

1 testify today and share my concerns for why strong

2 regulation is vital for safeguarding public health

3 and basic environmental integrity. It's a

4 privilege to be able to come before you as an

5 American, as a resident of Virginia and as a

6 current volunteer member of the Sierra Club's

7 B oard of Directors and one of its past presidents.

8 The Sierra Club

, as you know

, is America's largest

9 and oldest grassroots environmental organizations

10 standing at 1.3 million members and supporters.

11 I've also spent 25 years as a cancer biologist.

12 I applaud the EPA for recognizing the

13 serious problems posed by toxic coal ash left from

14 the burning of coal. Communities across the

15 country are exposed to heavy metals such as

16 arsenic, lead, mercury and selenium seeping from

17 ash storage sites into our drinking water, rivers

18 and streams. The result? Increased risk of

19 cancer, learning disabilities, birth defects and

20 other devastating illnesses. Workers in the many

21 industries that we have heard from are exposed to

22 these toxins in their dail y work environment.265

1 Option C will regulate coal ash from

2 cradle to grave, from its generation, to storage,

3 to tra nsportation, to management and disposal.

4 Option D will only require unenforceable

5 guidelines for disposal and is inadequate to

6 protect communities

, let alone workers. Coal ash

7 is ever ywhere, a 150 million tons a year at more

8 than 2,000 sites. Virginia alone produces 2.4

9 million tons of coal ash a year and we're

10 sixteenth in the country. There are 11 im pounds at

11 s ix plants. Communities are at risk from

12 disaster, from the lack of basic safety

13 procedures, from the toxins seeping into drink ing

14 water and from the fact that time and time again the

15 best intent by corporations is not sufficient to

16 compete with their financial interest and

17 communities pay the price.

18 If the BP oil disaster and the Tennessee

19 coal ash ca tastrophe taught us anything, it's that

20 corporate self

- regulation does not work. I urge

21 EPA to stand up to industry pressure and issue

22 strong federally enforceable standards to protect266

1 communities and workers from toxic coal ash.

2 Continuing to ignore scientific and safety

3 concerns comes at a high cost to our families,

4 communities and economy. There's no tradeoff

5 here. It's not about choosing between public

6 health and enabling responsible recycling. Strong

7 regulation under Subtitle C will promote saf eguard

8 and public health and protect the environment in

9 recycling of coal ash for beneficial use with

10 federally enforceable standards and

11 accountability. To encourage recycling, EPA c an

12 regulate coal ash as a hazardous waste when

13 disposed of but not when recycled. Thank you very

14 much.

15 MS. DEVLIN: Thank you. Number 213?

16 MS. M ILLER: Thank you. My name is

17 Jessica Miller and I'm here representing myself as

18 a concerned consumer of the industries that

19 produce this toxic coal fly ash. I am supporting

20 Subtitle C with the exception that the enforcement

21 date should be changed to be taking effect 6

22 months after the ruling, if not sooner, since time267

1 is of the essence as the folks who have talked

2 about their experiences and negative health

3 impacts of this on their lives and their families.

4 As for enforcement, Subtitle D lea ves

5 enforcement, the expense of the suits and the

6 burden of proof to the citizens. Those industrial

7 representatives that have spoken against Subtitle

8 C and for Subtitle D should start listening to the

9 citizens before the expenses start to rise. If we

10 do not have their cooperation and their ears, then

11 what can we expect from you if they are not

12 listening now? Corr ective action and the presence

13 of arsenic and other toxins like selenium and

14 others that have been mentioned by experts are

15 known to be in fly ash, yet the Mirant Company

16 that owns the Brandywine fly ash facility in

17 Brandywine, Maryland

, allowed their collection pond

18 water to be released without testing for selenium

19 and arsenic and that community

, as folks before me

20 have said

, is very susceptible to contamination of

21 the water since they rely a lot on wells as well

22 as streams that have been contaminated run2 68

1 directly behind private citizens' property.

2 For permit issuance, this is actually

3 something that the companies and industries that

4 have spoken out for Subtitle C should ta ke heart

5 in because in order to get a permit you have to

6 understand what the costs are associated with that

7 permit so that having Subtitle C enforced, and the

8 regulations will actuall y allow companies to make

9 a sound economic assessment of what these coal

10 plants and the projects of waste disp osal

,

11 basically the mess that their industry will cause,

12 will tru ly cost totally, and that will be able to

13 help them in deciding whether the project is

14 profitable within a moral economy.

15 For the surface impoundments that have

16 been built be fore and after this rule, I am glad

17 to see that both proposals include testing of the

18 water. I do want to stress that as to the surface

19 impoundments built after the rule, it's very

20 im portant that companies actually get jobs when it

21 comes to liners being required. It's comforting

22 to hear that people who are working with fly ash269

1 were supposed to wear protective equipment, I know

2 that probably is from the work of the unions and I

3 hope that you will be our collective power for

4 giving us the best protection you can. Thank you.

5 MS. DEVLIN: Thank you. Numbers 214,

6 215, 216 and 217. Number 214?

7 MS. LYNDSEY: How are you doing today?

8 My name is Lilly Lyndsey and I am a member of the

9 Hampton Roads community. I came today because I

10 wanted to share with you a real life story, and

11 sometimes there's human cause to things that

12 happen in the environment.

13 From 1996 to 2004 I was a U.S. Army

14 Stevedore at Fort Eustis and I had a colleague,

15 Specialist Henby

, who could do anything. She had

16 the title of Combat Cosmetologist. We would be in

17 the woods she'd go to the water buffalo she'd do

18 all kinds of chemical processes. There was

19 nothing she couldn't do. One day after a drill

20 she asked me if I could give he r a ride home : I

21 said sure.

22 I took her to her home and she lived in270

1 Newport News, Virginia. Outside of her home was a

2 huge mountain of coal like you would not believe.

3 It was unbelievable. Hampton Roads is as flat as

4 a pancake. To see it took my breath away. I

5 asked her have you noticed anyth ing as a result of

6 all this coal being stored here? She said you

7 know it's funny, but my daughter would go outside

8 and she'd play and she'd come back and her clothes

9 would be as black as tarpaper and I kept

10 reprimanding her why are you rolling in mud?

11 Finally one day she said, mom, I'm not rolling in

12 mud. All I did was swing on the swing and then I

13 just went down the sliding board. That sliding

14 board was a little more than a coal chute for all

15 practical purposes, and it's unfortunate but

16 here's someone that's one of America's heroes.

17 When Sept ember 11th came and there was a need for

18 someone to volunteer to fight, she volunteered.

19 I'm a person that imagines possibilities

20 and I've look ed on the Internet to see is it

21 possible for coal to become diamonds. It said

22 it's possible but you need millions of years and271

1 you need great environmental pressure. I do n't

2 have millions of years. I'm 45. I may be midway

3 right now, but so far a great environmental

4 pressure, maybe that's something that can come

5 from the EPA because in the Harbor Home Apartments

6 in Newport News, Virginia, you have diamonds in

7 the rough. You've got people like Specialist

8 Henby who go out every day and make America the

9 great place that it is. I wou ld like for you if

10 you have an opportunity to go to www.youtube.com,

11 and if you would kindly type in the words Harbor

12 Homes Apartments, a diamond in the rough. You

13 will see the mounta ins of coal in Hampton Roads,

14 Virginia

, will take your breath away. I thank you

15 for this opportunity and I wish you well.

16 MS. DEVLIN: Thank you. Number 215,

17 please.

18 MR. PAYNE: My name is Bryce Payne. I'm

19 from Pennsylvania. First, thanks for the

20 opportunity by the EPA and colleagues from

21 environmental groups for encouraging me to come

22 over here today. What I'm about to say I say as a272

1 scientist trying to help. Hopefully you can

2 forgive the tactlessness time con straints require.

3 For 12 years I investigated coal ash as

4 a consulting scientist under contract for coal

5 power plants. For those 12 years, industry

6 supported just enough sci ence to ease regulatory

7 compliance but never enough to confirm safety.

8 Then I investigated selenium impacts in

9 groundwater related to the 2005 ash spill in

10 Pennsylvania. That experien ce confirmed for me

11 that industry prefers ignorance over information

12 and some subservient science over scientific

13 integrity and rigor. Based on my conclusions

14 regarding selenium and c oal ash in Pennsylvania, I

15 attempted to warn TVA, TDEC and EPA of risks in

16 the planned spill response to the TVA 2008 ash

17 spill. I was joined by colleagues and we were

18 ignored.

19 New data will soon be released that show

20 fish in the impacted river system have gone from

21 initial tissue selenium levels of 3 to 5 parts per

22 million to now lethal levels over 20 pa rts per273

1 million of arsenic and selenium each. Humans and

2 wildlife are almost certainly eating those fish.

3 This is what coa l ash can do and conventional coal

4 ash thinking cannot see it coming.

5 Let me now attempt to disabuse you and

6 anyone else who will listen

, of some coal ash

7 science, engineerin g, regulatory myths and

8 misconceptions illustrated by these two cases.

9 One, both the failed ponds, PPL and TVA

, were

10 designed by and operated with the assistance of

11 professional engine ering staffs. Two, when the

12 TVA dike failed at an ash stack height of 65 feet

13 above grade, TVA and consulting professional

14 engineers were attempting to get approval for a

15 final height of over 300 feet and already had

16 state approval to go over 100 feet. Three,

17 halfhearted science has led to fundamental

18 misconceptions about and disregard for ash and its

19 properties. Those misconceptions relied upon by

20 engineers, managers, consultants and regulators

21 caused the dike failure and produce a

22 fundamentally flawed root cause analysis. The274

1 TCLP failed to detect probably selenium releases

2 from ash in the PPL and TVA cases. The new

3 multi

- pH tests will not fair much better because

4 they too ignore fundamentals of the chemistry,

5 physics, biology and behavior of coal ash. NPD E S

6 permits at the PPL and TVA ash spill sites

, like at

7 most power plants

, did not require monitoring of

8 selenium, arsenic or other ash

- derived toxics and

9 therefore provide no protection.

10 Extending from these points, I would ask

11 that EPA consider the following questions. How i s

12 it that an open pit mine is functionally different

13 from a sand pit or quarry? Given the history of

14 liners covers only 30 to 40 years, why would one

15 presume for risk analysis that th ey remain intact

16 for centuries or millennia? May our descendents

17 forgive us when these time capsules in the future

18 open, and they will. I'd like to expand on these

19 and other points but I'm sure I'm out of time. I

20 hope you put ash under the Subtitle C designation.

21 MS. DEVLIN: Thank you. Number 216,

22 please.275

1 MS. VERTREES: My name is Marissa

2 Vertrees and I want to thank you for the

3 opportunity to testify here today. I am the

4 Social Justice Director of St. Charle s Borromeo

5 Catholic Church in Arlington, Virginia, and a

6 board member of the Virginia Chapter of Interfaith

7 Power and Light, an organization made up of people

8 from all faith traditions who have come together

9 out of our strong belief that we are called to be

10 responsible stewards of the environment.

11 Because of this belief, I am here today

12 to ask you to regul ate coal ash under the Subtitle

13 C designation. Coal ash is a hazardous substance.

14 We've heard many people dismiss the Kingston

15 disaster as an engineering disaster rather than an

16 envir onmental one or something because of the

17 substance itself. And while this was certainly a

18 very dramatic disaster that drew our attention to

19 this, there are many quieter dangers from coal ash

20 that are affecting our communities every day. It

21 contains all of the impurities and contaminants

22 that are found in coal itself, particularly276

1 dangerous heavy metals such as mercury, arsenic,

2 selenium, chromium, cadmium and lead. These

3 toxins bioaccumulate, building up in the system

4 over the years and making it dang erous to pinpoint

5 any sort of safe amount. These toxins will leach

6 into the water supply from landfill coal ash or

7 from storage and waste ponds. We've already seen

8 this happen. In c ommunities that surround areas

9 where coal ash is being stored we've seen

10 respiratory ailments, neurological problems and

11 reproductive and developmental challenges as well

12 as other heal th problems. In some areas it is

13 estimated that the risk of cancer has grown to

14 nearly 1 in 50, almost 2,000 times the acceptable

15 background level. The dangers of this product are

16 we ll known and no one here has argued against any

17 sort of regulation but, rather, the type. We need

18 to have strong, enforceable and effective

19 regulation available from Subtitle C.

20 Subtitle D does not provide the

21 enforcement that is necessary, putting the burden

22 on the citizens and the states. It also does not277

1 require that all states accept these federal

2 regulations. EPA has estimated that possibly half

3 of the waste generated in the United States will

4 not be covered by these new regulations as states

5 will not adopt them, leaving many people in the

6 same situation that they're currently in. Perhaps

7 most troubling though is the fact that Subtitle D

8 will not require utilities t o monitor old and

9 inactive waste dumps, leaving several communities,

10 disproportionately poor and minority ones, at

11 significant risk of toxic if not deadly drinking

12 water.

13 Regulations of this substance have been

14 long in coming. I and other faith leaders here

15 today are here to urge you to provide the strong

16 and enforceable regulation provided by Subtitle C

17 to stop utilities from poisoning our communities.

18 Thank you.

19 MS. DEVLIN: Thank you. Number 217,

20 please. With that we are going to take a very

21 short, abou t a 5

- minute break, and we'll come

22 back like I said in about 5 minutes.278

1 (Recess)

2 MS. DEVLIN: We' d like to get started

3 again. Trying to keep this moving and give

4 everybody a chance to speak.

5 I'm going to call numbers 79, 82, 83,

6 and 84.

7 MR. C ERULLO: Good afternoon. I'm Tom

8 Cerullo with Separation Technologies. I actually

9 work for a company that profits when power

10 companies experience high landfill costs. The

11 more diffi cult it is for a power company to

12 landfill their fly ash, the better it is for my

13 company. So, I have a unique perspective on this.

14 Separation Technologies

-- we produce

15 and sell patented equipment that can be used for

16 processing fly ash. You process the fly ash, it

17 is now usable in concrete. So, we can take a

18 utility from being in the landfill business to

19 being into the beneficial

- use business. And my

20 responsibilities within the company are to work

21 with those utilities and try to sign up more

22 utilities to utilize our equipment. So, one would279

1 think that my company would be in favor of

2 regulations that make it just as difficult as

3 possible on utilities to landfill their fly ash.

4 Such difficulties would, in theory, pull more

5 sales out of their businesses for our company.

6 It's our position as a company, as

7 Separation Technologies, that Subtitl e C would not

8 benefit

-- the beneficial

- use industry would not

9 benefit from the implementation of more processing

10 equipment to take what would be landfilled ash

11 into beneficial applica tions.

12 When I meet with utilities and I

13 describe to them our solutions for landfilling,

14 their responses and their reactions now to me are:

15 Thanks but no thanks; we need to wa it and see how

16 this EPA thing sorts itself out; if this thing

17 goes Subtitle C, we're out of the beneficial

- use

18 business; we're worried about liability; we're

19 worried about liabilities finding us from the use

20 of this product in beneficial applications.

21 Furthermore, they say we're unwilling to make the

22 investment because if the liability doesn't get280

1 us, the destruction of the beneficial

- use market

2 will get us and so we will now have made an

3 investment to beneficiate this ash and there'll no

4 longer be a market to sell the product.

5 So, I'm here to report to you as a

6 business development person for a company that

7 could benefit from regulations done the right way

8 that we feel that Subtitle C is not the right way

9 to go, and I'm here advocating for Subtitle D.

10 I thank you for your consideration, and

11 good afternoon.

12 MS. DEVLIN : Thank you. Number 82,

13 please.

14 MR. DAVIS: Good afternoon. My name is

15 Vernon Davis. And, no, I don't play for the San

16 Francisco 49ers.

17 Thank you for the opportunity to speak

18 before you today. I'm here as a private citizen

19 employed by a very reputable company that manages

20 all aspects of coal fly ash. We market to the

21 concr ete market, filler market, concrete block

22 market, as well as site management of ash disposal281

1 for most all the major utilities across the

2 nation.

3 As you'd guess, I'm opposed to the

4 classifying of fly ash as hazardous. I've been in

5 fly ash management since 1975, and I can honestly

6 say I don't know of any illness related or caused

7 by the exposure of fly ash.

8 We in our industry are as concerned with

9 the environment as anyone. We take great pains to

10 abide by the regulat ions set forth by the

11 regulatory departments. We also take great pride

12 in the way we manage these sites we're in charge

13 of by being good stewards of the environment.

14 Nothing will chan ge our commitment regarding the

15 way we do our jobs regardless of the ruling now

16 being debated, but the cost associated will

17 increase substantially if the ruling declares fly

18 ash as haz ardous. The end user

-- the consumer

--

19 will bear the burden of the cost associated with

20 the ruling if fly ash is wrongfully deemed

21 hazardous. An industry that I'm proud to say I've

22 been a part for over 30 years will be decimated282

1 and jobs will be lost.

2 Again, let me thank you for allowing me

3 th e time to voice my opinion.

4 MS. DEVLIN: Thank you. Number 83,

5 please. 83's not here.

6 Number 84? Okay.

7 MR. MASTIN: Hello, and thanks for the

8 opportunity to speak today.

9 My name is Frankie Mastin. I'm an

10 operational supervisor for Headwaters Resources.

11 The landfill I manage is in Chesapeake, Virginia,

12 and it is the same landfill where the million and

13 a half tons of fly ash was processed for the

14 Battlefield Golf Course project.

15 Altogether I've been a part of 3

- 1/2 to

16 4 million tons of ash leaving that same site for

17 beneficial

- use projects. It has been used for

18 interstate building

-- interstates, building pads,

19 and a n outfield for a minor league baseball

20 st adium. That's 3

- 1/2 and 4 million tons of sand,

21 dirt, and clay that was not removed from the

22 earth. I see that as the best reason for the283

1 material not to be a hazardous waste. More

2 disturbed earth and landfills filled with fly ash

3 just can't be the same as a renewable resource in

4 an industry where we take waste from coal

- fired

5 power plants and reuse it. Fly ash with the

6 hazardous waste label will make it more expensive

7 to dispose of and it'll make electric bills go up

8 and will cause a loss of jobs in our industry.

9 We recycle almost 50 percent of the ash

10 produced in America, and of course we want that

11 number to be 100 percent. And that's the goal of

12 our company and I bel ieve that should be the goal

13 of everybody. I believe that what is the best in

14 our environment

, and making fly ash hazardous waste

15 will not allow that to happen.

16 And, once ag ain, thank you for the

17 opportunity to speak.

18 MS. DEVLIN: Thank you. Okay, numbers

19 85, 86, 87, and 91. Number 85?

20 MS. NORCROSS: Hello. My name is Beth

21 Norcross. I'm a minister specializing in

22 ecotheology. I'm also adjunct professor at Wesley284

1 Theological Seminary. It's a pleasure to be with

2 you today to talk about this very important

3 matter. My time is brief, so I thought I would

4 share a story with you from our sacred text, the

5 Book of Matthew. I should point out at the outset

6 that this is a story that is shared across all

7 major religious traditions, not just Christianity.

8 In this story, Jesus is being tested by

9 the religious aut horities of his time who happen

10 to be in cahoots with the political authorities.

11 They're trying to discredit him because he's

12 wildly popular with the masses. Trying to trick

13 Jesus, on e of the lawyers asks him, Teacher, what

14 is the greatest Commandment?

15 Jesus replies, as one of my children

16 might, duh, love your God with all your heart and

17 mind and soul. T his is very familiar I'm sure.

18 Pretty straightforward.

19 But then Jesus uses this opportunity to

20 turn the conversation around so that he is now

21 teaching and testing the authori ties. Well, since

22 you brought this subject up, Jesus says, let's285

1 talk about the second great Commandment: Love

2 your neigh bor as yourself. He said this is so

3 important, these two Commandments, that everything

4 else in the Bible hangs on these two.

5 Now, unlike the many other times that

6 this very familiar passage was taught by Jesus,

7 this time he's not talking to the people. He's

8 talking to the authorities directly, those with

9 the power who can use it to either benefit their

10 n eighbors or harm their neighbors as these

11 particular authorities were prone to do.

12 So, I humbly suggest to you today that

13 you all are the authorities of our time with all

14 the power and the influence and the potential for

15 doing good or doing harm to our neighbors and your

16 neighbors. I'd also humbly suggest that the way

17 to love our neighbors is not to deny, as Subtitle

18 D does, that mercury and lead and arsenic are

19 indeed hazardous to our neighbors; not to pretend

20 that, as Subtitle D does, that a hodgepodge of

21 state regulations and guidance are really the way

22 to protect our neighbors, but rather to love our286

1 neighbors, adopt Subtitle C that names this waste

2 for what it is

-- ha zardous, harmful, particularly

3 to the children and other innocents among our

4 neighbors; to adopt Subtitle C that seeks to

5 really do the job of protection that the name of

6 your A gency charges you with; and to adopt

7 Subtitle C that allows you to assume the

8 leadership and power and authority given you and

9 not take the easy way out, not make the political

10 compromise wh en your neighbors' health and safety

11 is at stake. Thank you so much.

12 MS. DEVLIN: Thank you. Number 86,

13 please.

14 MR. FORTUNA: Don't hit it yet. Hello.

15 My name is Richard Fortuna. I have been working

16 on RCRA regulatory, legislative, and litigation

17 issues since 1979. In light of the many

18 falsehoods being disseminated regarding RCRA

19 regulation and recycling, I've been asked by a

20 consortium of the environmental community to

21 prepare a report on the history of recycling under

22 RCRA, which will be submitted for the record of287

1 this hearing.

2 There's three points I'd like to make

3 this afternoon. One, recycling is alive and

4 th riving under RCRA. There are many thriving

5 recycling markets under RCRA for materials which

6 have been designated as hazardous waste. In

7 addition, there are several consumer

- based

8 haz ardous wastes for which recycling markets are

9 doing extremely well. This will be expanded upon

10 in the report that'll be submitted later.

11 Number two, as the level of regulatory

12 control increases, so does the level of recycling.

13 One example of this is KO61, electric arc furnace

14 dust. I conducted a study for EPA back in 1994

15 which showed several interesting things. One is

16 prior to RCRA regulation, relatively little EAF

17 dust was recycled. Once the regs in place were in

18 1980 and the land disposal bans took effect in

19 1986 through 1990, the level of EAF dus t recycling

20 accelerated as did the diversity of recycling

21 technologies available. Now, confirmation of this

22 trend came later that decade when I conducted a288

1 private market study of opportunities for

2 recycling in Canada. A survey of those steel

3 industries in Ontario showed little interest

--

4 little to no i nterest in recycling because, as

5 they said, we still have our back 40, why would we

6 want to recycle?

7 And number three and finally, claims of

8 stigma are little more than a sht ick. For those

9 of you who may have forgotten your college

10 Yiddish, a shtick is a contrived and overused bit,

11 and a shtick aptly describes what is

-- how stigma

12 is being used in the co ntext of this rulemaking.

13 Every potentially regulated recycler since 1979

14 has claimed stigma if you regulate their recycling

15 of their waste. This includes the cement

16 industry, the che mical industry, the (inaudible)

17 recycling industry, the fuel blending industry,

18 the oil industry, the steel industry, to name but

19 a few. All this will be detailed in the report

20 that'l l be submitted for this rulemaking. Not

21 once have these claims ever been realized.

22 I would also point out that Congress289

1 explicitly addressed the competing goals of

2 resource recovery and protection of public health

3 and the environment in the 1984 HSWA amendments.

4 In 1984, Congress specifically stated with regard

5 to used oil recycling as follows: It was never

6 Congress' intent that protection of public health

7 and the environment be subordinated to the

8 continuation of used

- oil recycling practices

.

9 And one last detail, which I can finish

10 in the last 30 seconds, stigma is also illegal.

11 Pursuant to a ruling of the D.C. Circuit in the

12 used

- oil recycling regulation, the C ourt deemed

13 that if it's not in the statute, you can't use it.

14 One last point I'll make since I have 15

15 seconds left is that I think we have to be mindful in

16 this regulation that many so

- called recycling

17 practices are little more than disposal and drag.

18 That's particularly true for the nonencapsulated

19 uses such as land reclamation and agricultural

20 uses. T hank you very much.

21 MS. DEVLIN: Thank you. Number 87,

22 please.290

1 MR. AUS: Okay. Hi. I'm Doug Aus and

2 I'm a resident of the state of Maryland. And I am

3 speaking out in favor of Subtitle C because as

4 someone who lives near a large body of water, the

5 Chesapeake Bay, which has a lot of r ivers that

6 flow into the bay, that coal ash with all its

7 toxic elements, such as lead, mercury, and

8 ars e ni c , that these

-- that if a coal ash pond

9 were to fail, too much of these to xins would

10 probably get into one of these rivers, especially

11 if it was near

-- if there was coal ash pond near

12 the Chesapeake Bay and probably contaminate the

13 bay and destroy a lot of marine life. And

14 currently there's enough coal ash being stored in

15 waste ponds all across the United States to flow

16 continuously over Niagara Falls for more than

17 three days straight, and enough coal ash is

18 generated every year to fill train cars stretching

19 all the way from the North Pole to the South Pole.

20 And I will conclude with these several

21 points, th at only Subtitle C regulations could

22 guarantee the full panoply of the protections291

1 needed to phase out the dangerous waste ponds.

2 And I'll conclude by saying that regulation of

3 coal ash under Subtitle C will increase disposal

4 cost and thus provide an incentive for greater ash

5 recycling.

6 MS. DEVLI N: Thank you. Number 91,

7 please.

8 MR. DUNLAP: Thank you. My name is

9 Randy Dunlap and I am president of Separation

10 Technologies and Essex Cement.

11 I want to thank the EPA for conducting

12 these hearings for what will potentially be the

13 most important decision in regulation that those

14 of us that are both users and marketers of CCRs

15 have ever dealt with.

16 Separation Technologies is a company

17 with more than 100 employees that is involved in

18 the processing and marketing of fly ash. We have

19 a patented zer o emissions technology that

20 processes and removes carbon from fly ash, thereby

21 taking the fly ash that would normally have to be

22 landfilled and turning it into a high

- quality292

1 product for use as a partial replacement for

2 Portland cement and concrete.

3 Our business model entails providing a

4 100 perc ent solution to the utility industry with

5 respect to CCRs, resulting from the combustion of

6 coal during their power generation. The carbon

7 that our technology removes is then available to

8 be returned to the utility for fuel. My point is,

9 in this background on our company, is that as a

10 processor and a marketer in one of EPA's positions

11 that not only will a Subtitle C regulation not be

12 a stigma to the use of coal combustion or residue

13 recycling, but actually could enhance the

14 utilization that our company, if, in fact, that

15 was true, would be one of the biggest

16 beneficiaries of that ruling, both from

17 implementing and expanding our technology as well

18 as providing the larger market for the CCRs. So,

19 we come at it from a perspective that certainly if

20 we believe that was a legitimate position, we

21 would certainly come out in favor of Subtitle C.

22 We are absolutely not in favor of Subtitle C. The293

1 stigma is real and we are a proponent of Subtitle

2 D.

3 I'd like to make a few points, if I

4 could, for your consideration, particularly as it

5 relates to Subtitle C classification and the fact

6 that it will not create a stigma for the

7 beneficial use of CCRs. Those assumptions from

8 the EPA, as I understand it, is a Subtitle C

9 classification could actually increase the

10 beneficial use because it will make the cost of

11 landfilling more expensive, thereby creating an

12 incentive for the utilities to either subsidize or

13 further increase the use of CCRs. This assumption

14 is incorrect, and I can assure you that this will

15 not be the case for several primary reasons.

16 A concrete producer operates o n very

17 slim margins, as you heard earlier today. The

18 average profit margin is less than $5 and current

19 market is less than a dollar. The use of fly ash

20 and concrete is already a stro ng financial

21 incentive for the utilization of fly ash in

22 concrete.294

1 Second point is any potential cost

2 savings that a producer might see from the use of

3 fly ash would quickly disappear with just one

4 lawsuit resulting from the hazardous

5 classification of CCRs regardless of how frivolous

6 the lawsuit might be.

7 And last point, even if the argument

8 could be made that an additional financial

9 incentive could increase the use, this assumes

10 that there's some vast untapped potential for

11 increased usages of concrete. This is simply not

12 the case. Thank you.

13 MS. DEVLIN: Thank you. Numbers 89, 93,

14 94, and 96, if you guys could com e to the table.

15 Okay, number 89

-- thank you.

16 MR. JOHNSON: Good afternoon. My name

17 is Brian Johnson. I come to you today on behalf

18 of Greenpeace, but also as a l ocal resident from

19 right next door here in Alexandria.

20 I'm pleased to see that the EPA is

21 finally considering regulations on dirty coal ash

22 waste. Coal ash is a toxic substa nce that295

1 contains nasty pollutants, such as mercury, lead,

2 and arsenic, and yet industry has already filled

3 waste ponds wit h enough coal ash to flow over

4 Niagara Falls for more than three days. Living

5 near an unlined coal ash pond increases a person's

6 cancer risk to 2,000 times beyond the EPA's

7 acceptable level, and the EPA's own risk

8 assessment has already determined that living near

9 an unlined coal ash waste pond and drinking

10 arsenic

- contaminated water can be more adverse to

11 a person 's health than smoking a pack of

12 cigarettes every day. That's why I urge EPA to

13 regulate coal ash under Subtitle C of the Resource

14 Conservation and Recovery Act, giving coal ash the

15 s pecial waste designation it deserves and putting

16 in place requirements that will help keep people

17 like myself out of harm's way.

18 Subtitle C is backed by the EPA's own

19 science , which shows that some coal ashes leach

20 high levels of heavy metals. At the same time,

21 Subtitle C will incentivize ash recycling by

22 increasing disposal costs.296

1 Subtitle D, on the other hand, is not an

2 acceptable plan. It is amazing to me that the EPA

3 would even consider Subtitle D. Subtitle D

4 actually treats coal ash waste as if it were

5 nonhazardous and allows industry to slip under

6 weak regulations. Moreover, the EPA itself

7 acknowledges that Subtitle D would allow many coal

8 ash dump and waste ponds to go on uncleaned.

9 With Subtitle D in place can we really

10 expect that the disaster that struck Tennessee in

11 2008 will not happen again? What happened in

12 Tennessee is not limited to that region, but

13 represents an issue of national scale. Coal ash

14 dumps exist in nearly every state, including

15 Virginia and Maryland, and coal ash is produced at

16 Mirant's Potomac River Generating Station just 10

17 minutes down the road from my town, Alexandria.

18 Please, I urge you, regulate coal ash

19 under Subtitle C and help prevent disaste rs like

20 what happened in Tennessee from happening again.

21 Thank you.

22 MS. DEVLIN: Thank you. Number 93?297

1 Okay, number 94?

2 MR. FRISBY:: Hello. My name is

3 Bradford Frisby. I'm the associate general

4 counsel for the National Mining Association, or

5 NMA. NMA represents th e producers of most of

6 America's coal, metals, industrial, agriculture,

7 and minerals. NMA members place CCRs in their

8 minds and otherwise beneficial

- use CCRs at their

9 facilities and a re, therefore, very interested in

10 EPA's proposed rule. NMA strongly supports EPA's

11 preamble statement that the agency is not

12 proposing to address the placement of CCRs in

13 mines or non

- minefill uses of CCRs at coal mines

14 in this action.

15 In 2006, the National Academy of

16 Sciences recommended that the Office of Surface

17 Mining and its state partners under the Surface

18 Mining Control and Reclamation Act take the lead

19 in developing new national standards for CCR use

20 in mines, because the framework is in place to

21 deal with mine

- related issues. NMA agrees with

22 the NAS and urges EPA to continue to defer to OSM298

1 given its considerable expertise in mine

2 regulation.

3 NMA, however, is concerned that EPA's

4 intention to defer to OSM is not executed properly

5 in the proposed regulatory text. For example, the

6 definition of minefill in the preambl e is vague

7 and does not adequately account for non

- minefill

8 uses of CCRs, but E PA states it is not regulating

9 under this proposal. In addition, only the

10 proposed hazardous waste regu lations under

11 Subtitle C specifically exclude minefilling

12 operations.

13 No definition appears in the proposed

14 regulations for the term "minefilling." Although

15 we believe that EPA's intention was for other

16 non

- minefill uses at coal mines to be exempt from

17 EPA's rule, this point is left unclear by the text

18 of the proposed regulation. The proposed

19 nonhazardous waste regulations under Subtitle D

20 should, but do not, include a similar exclusion.

21 Furthermore, EPA's definition of CCR landfill

22 under both proposals only expressly excludes299

1 underground mines and thus fails to address

2 surface mines.

3 To avoid significant confusion and

4 regulato ry uncertainty, EPA must make it clear in

5 the preamble and in the final regulatory text that

6 placement of CCRs at mines and other non

- minefill

7 uses of CCRs in underground and surface coal mines

8 are all excluded from the rule's requirements.

9 NMA strongly opposes EPA's proposal to

10 reverse the 1993 and 2000 Bevill regulatory

11 determinations, which correctly concluded that

12 CCRs should be regulated as nonhazardous waste.

13 NMA also strongly opposes listing CCRs as special

14 waste and subjecting these materials to hazardous

15 waste regulation under Subtitle C. A reg ulatory

16 program under Subtitle D will protect human health

17 and the environment without putting unnecessary

18 barriers on the beneficial uses of CCRs.

19 NMA strongly supports EPA' s decision not

20 to reverse the regulatory determination for

21 beneficial uses of CCRs, but is concerned with

22 EPA's discussion of unencapsulated uses, a term300

1 not well

- defined in the proposal. This term could

2 be interpreted to encompass certain uses of CCRs

3 at mine sites contradicting EPA's stated intention

4 no t to regulate their uses under RCRA. CCRs serve

5 a variety of important uses at mine sites, and

6 EPA's final role should not put these uses in

7 peril. Thank you very much.

8 MS. DEVLIN: Thank you.

9 MR. FRISBY:: I have a copy.

10 MS. DEVLIN: Great. Thank you very

11 much. Number 96, please.

12 MR. CROCE: Good afternoon. Thanks for

13 having us. My name is Joe Croce. I'm senior vice

14 president of the Virginia Manufacturers

15 Association and the environmental manager. On

16 behalf of the VMA, we oppose regulating coal

17 combustion byproducts as hazardous waste.

18 A little bit about the VMA. We're the

19 state's largest industrial trade association

20 representing small and large manufacturers in

21 every industrial sector. The VMA is the state's

22 leading voice for the manufacturing economy and a301

1 sector that employs thousands of people. It's our

2 mission to enhance competitiveness of

3 manufacturing and to improve the living standards

4 of our people by shaping a legislative and

5 regulatory environment conduciv e to the U.S.

6 economic growth.

7 The VMA supports continued regulation of

8 CCBs under Subtitle D as a nonhazardous waste. By

9 allowing continued recycling and beneficial use of

10 CCBs in the manufacture of concrete, paints,

11 gypsum, and some wood and plastic products,

12 industry is able to assist a cost

- competitive

13 feedstock for a variety of products. These

14 beneficial uses for CCBs extend to the manufacture

15 of products throughout the economy, including our

16 construction industry and housing sector.

17 Construction products such as fiber, cement, roof

18 shingles also contain CCBs. A reclassification

19 for handling as hazardous waste would raise the

20 costs of these products and undermine an economic

21 recovery that is attempting to ta ke hold and

22 threatening jobs.302

1 Stricter regulation of CCBs would also

2 raise energy costs, adding more competitive

3 burdens on the manufacturing sector.

4 Reclassifications of CCBs as hazardous waste under

5 RCRA Subtitle C would increase the price of

6 electricity by increasing compliance costs for

7 power generators. Stricter federal regulations

8 would also force coal

- fired power and industrial

9 plants or manufacturers plants to handle and store

10 massive quantities of coal byproducts as hazardous

11 waste that would increase the costs of operating

12 the power generation.

13 The VMA recommends continued regulations

14 of CCBs under Subtitle D, and we look forward to

15 providing comment during a formal comment period

16 in November. Thank you.

17 MS. DEVLIN: Okay, thank you. The next

18 numbers I have are numbers 97, 98, 99, and 100.

19 98? Okay. Come up.

20 MR. MELLON: Good afternoon. My name is

21 Paul Mellon, president of Novetas Solutions.

22 We're a small company that manufactures recycled303

1 glass products. Our signature brand is New Age

2 Blast Media, which is an abrasive.

3 This is actually the second time I've

4 come be fore the EPA to discuss the coal combustion

5 waste proposal. The first time was in January,

6 where we made a presentation to the EPA in

7 Washington, D.C., where we tried to show the EPA

8 that, in fact, it already had the information in

9 its own records that conclusively proved that coal

10 slag, when used as an abrasive, does not, in fact,

11 warrant the beneficial

- use designation and, in

12 fact, has been misused by the coal slag abrasive

13 industry for a number of years.

14 Specifically, we showed that when you

15 blast with coal slag abrasives, the glassy matrix,

16 which was referred to earlier by Harsco

17 Corporation , is, in fact, shattered and what you

18 get is a toxic dust. That's not me saying that;

19 that's the EPA. Because in 1997, the EPA said

20 that Black Beauty

-- slags

-- had been documented

21 to release hazardous airborne pollutants. And so

,

22 when those hazardous airborne pollutants fall to304

1 the ground or on wood or on people, they are, in

2 fact, unencapsulated and they are a danger and a

3 threat to the environment and to human health.

4 And, in fac t, most of this product, when it is

5 scooped up, is, in fact, sent to a landfill

6 anyway. All of these are violations of the past

7 beneficial

- use program.

8 And so we wholehearte dly supported

9 Director Jackson when she said that they were

10 going to look at regulating potentially coal slag

11 or all coal combustion residuals going forward.

12 And the May 4th declaratio n from Director Jackson

13 was I think something that should be applauded

14 because she basically came out and said that we're

15 going to finally apply a commonsense approach to

16 the regulatio n of coal combustion waste.

17 Basically, she hit the reset button on this very

18 important problem.

19 In June of 2010, the EPA released the

20 proposed regulations. It's a 138

- page r ule, which

21 we have studied intently. And again, I'm happy to

22 see that the EPA, perhaps finally looking at all305

1 of the infor mation at hand regarding coal slag

2 abrasives, has not, in fact, listed coal slag

3 abrasives as a beneficial

- use product in the new

4 regulations. And this makes sense. When you look

5 at the information that is out, it is clear that

6 this product is, in fact, a toxic product. I find

7 it an interesting fact that on page 35212 the EPA

8 announces that the ACA A 's definition of "beneficial

9 use" does not align with that of the EPA.

10 The bottom line, to be brief here, is

11 that

-- just to give you some local flavor

--

12 about three hours south of here is the Norfolk

13 Shipyards at the mouth of the Chesapeake Bay. It

14 is estimated that 30,000 to 50,000 tons of coal

15 slag are used every year in the Norfolk area to

16 the Virginia Beach area. That's a million tons of

17 coal slag that is unencapsulated, dumped into

18 regular landfills, and spread throughout that area

19 since the 1970s. Hopefully, the EPA's new

20 regulations will give owner

- operato rs and

21 contractors an opportunity to make different

22 choices. Thank you.306

1 MS. DEVLIN: Thank you. Number 97.

2 MR. HOUSEKNECHT: Good afternoon. My

3 name's Edward Houseknecht, Jr. I'd like to thank

4 you for the opportunity. I'm advocating Subtitle

5 D.

6 I'm the o perations manager at Separation

7 Technologies' Baltimore location, and I've been

8 there 11+ years. We employ 12 local employees.

9 We're located at Constellation Energy, Brandon

10 Shores lo cation in Anne Arundel County, with a

11 startup date of 1999. Our operation's recent

12 milestones include 2 million

- plus tons shipped

13 from our location over 11+ years for use in a

14 concret e construction industry. In that time,

15 we've had zero lost time accidents, zero medicals,

16 and zero environmental reportables. In this time,

17 an estimated 80,000 bulk tanker trucks have left

18 our facility to offload at over 100 customers at

19 260+ locations, including 50,000 tons loaded to

20 rail and barge. We have a current state approval,

21 DOT approvals in New York, New Jersey, Delaware

,

22 Pennsylvania, Virginia, West Virginia,307

1 Mississippi, Alabama, as well as Maryland. We

2 also have NSF approval.

3 Over our history here's just a short

4 list of some projects that we've provided ProAsh

5 to: Lockraven Reservoir Dam, 206; Dulles Airport

6 Runway, 207; Pax River Airport, early 2000s;

7 Woodrow Wilson Bridge project 20 0 6/20 0 7; Census

8 Bureau, D.C., 20 0 6; Chinese Embassy, D.C., 20 0 6;

9 Susquehanna Bridge project, 20 0 5/20 0 6; Freedom Tower

10 in New York, 2 0 10; both stadiums in Ne w York and

11 also Philadelphia Stadium.

12 If you have any

-- my invite to

13 everybody here, if you have any questions or are

14 in our area in Baltimore, I would be happy to

15 respond to calls or, more importantly, have anyone

16 visit our location to see for yourself what our

17 processing and load

- out have done. Thank you very

18 much.

19 MS. DEVLI N: Thank you. Number 99,

20 please. 99 is not here?

21 Number 100?

22 MR. BRYANT: Good afternoon. My name is30 8

1 Mark Bryant. I manage emission control

2 commodities for Ameren Energy Fuels and Services

3 in St. Louis. I am testifying today on behalf of

4 the American Coal Ash Association.

5 I have previously submitted comments to

6 the docket describing the negative stigma that

7 EPA's proposal has created. I would like to

8 reinforce those comments today by supplying

9 additional evidence of how the public has become

10 suspicious of any use of fly ash. This suspicion

11 is due to the possibility that U.S. EPA will

12 regulate CCRs as a hazardous special waste und er

13 RCRA Subtitle C. Attached to these comments is a

14 newspaper article describing a county board member

15 in Madison County, Illinois, questioning a

16 technically sound use of fly ash as p roposed by

17 the Army Corps of Engineers. Specifically, this

18 project involves the repair of the Alton to Gale

19 Levee District.

20 The low

- cost option of the four options

21 proposed include the use of fly ash as an

22 ingredient. It is the low

- cost option by a309

1 significant margin. This article provides cle ar

2 evidence that the public does not understand the

3 subtle distinction that EPA has attempted to

4 create with the new hazardous special waste label.

5 It also confirms that terms such as "hazardous"

6 and "toxic" are misapplied by those opposed to

7 beneficial use, by some in the media, and by a

8 partially informed public. Sadly, this public

9 discussion is unraveling years of sound science,

10 demonstration, and market development.

11 Based on the information available, this

12 public board is opposed to this option because of

13 the ash. Damage to the pu blic perception of

14 beneficial use has clearly occurred. Without any

15 evidence, this negative stigma has been reported

16 in the local media. The Corps of Engineers will

17 have to incur sig nificant additional expense or

18 reduce the amount of levee repaired by this

19 project if this low

- cost option is not available

20 due to stigma. Taxpayer

- funded budgets are

21 already being stretched. The beneficial use and

22 recycling markets, which are already feeling the310

1 chill of possible C regulation, will be

2 irreparably damaged if any RCRA Subtitle C options

3 are chosen.

4 In St. Louis, regional and local damage

5 is already occurring. Small business private jobs

6 will be lost, the e ngine that will drive our

7 economy out of the recession. Good uses,

8 EPA

- supported uses, of ash are being lost. RCRA's

9 time

- tested methodology for determining whether a

10 material is haz ardous is being ignored.

11 Significant government

- funded research and

12 demonstration has supported beneficial use and

13 recycling for many years. This activity has added

14 to the good scienc e of our industry and what it is

15 based on.

16 Please abandon the effort to regulate

17 CCRs under RCRA Subtitle C, as the science doesn't

18 support it. Instead, a Subtitle D approac h will

19 accomplish everything that is technically

20 necessary to properly manage these materials when

21 stored, recycled, beneficially used, or disposed.

22 The evidence of gaining federal

-- the expedience311

1 of gaining federal enforcement authority under

2 RCRA Subtitle C is flawed public policy. RCRA

3 Subtitle D, am ended if necessary, is technically

4 sufficient. Thank you.

5 MS. DEVLIN: Thank you. Before I go on,

6 I want to ask is there anyone in the audience with

7 a number of under 100 t hat has not spoken?

8 Okay, all right. Then I would like to

9 call numbers 102, 103, 104, and 105, please.

10 MR. RICHARDSON: Good afternoon. I am

11 Bill Richardson, co

- f ounder and managing partner

12 of Precision Recycling Industries of Virginia

13 located in Chester, Virginia. My partners and I

14 formed PRIVA about 18 months ago in order to build

15 a producti on facility to produce recycled glass,

16 open

- air abrasives, marketed under the brand name

17 of New Age Blast Media, as well as other post

-

18 consumer glass fillers for various industries

19 se eking to meet post

- consumer content requirements

20 for their products. There are many businesses

21 like ours across the country trying to compete in

22 the abrasive market industry by offering products312

1 that are nontoxic and Earth friendly.

2 Our plant opened its doors and began

3 production in January 2010. In March, after

4 thorough inspection of our process and QC

5 protocols by the U.S. Navy, our facility was

6 placed on the Military Qualified Providers List

7 for open

- air abrasives. We employ 10 people at

8 our plant running one shift and could easily

9 double that as demand increases. Since January,

10 we have shipped thousands of tons of New Age Blast

11 Media throughout Virginia, including No rfolk and

12 Hampton Roads, and in addition

, to surrounding

13 states. We offer a safe, nontoxic alternative to

14 coal slag and other metal

- laden slags that are

15 currently used

-- widely used in this country. In

16 the process we have diverted thousands of tons

--

17 I mean thousands of pounds of recycled glass from

18 local landfills, including those in the D.C. area.

19 My partners and I have invested over a

20 million dollars in private funds. In our company

21 we have not sought nor received any government

22 assistance. We have created new jobs in the green313

1 industry and diverted thousands of tons of

2 recyclable glass from landfills. We have the

3 capacity in our Virginia facility to produce over

4 3,000 tons a month of safe, recycled glass

5 abrasives that would replace coal slag and other

6 CCB open

- air abrasives that the EPA and others

7 recognize as serious health and environmental

8 issues.

9 We are asking the EPA to cease the

10 allowing of the coal slag industry to use the EPA

11 to promote their product as a beneficial use in

12 open

- air abrasi ve blasting when it is clearly a

13 hazard when used in this manner. We are also

14 asking the EPA to maintain the current proposal to

15 remove the beneficial

- use designation of CCBs as

16 an op en

- air abrasive. We applaud your efforts to

17 regulate this serious problem with CCBs and look

18 forward to seeing your final requirements.

19 Thanks.

20 MS. DEVLIN: Thank you. Num ber 103,

21 please.

22 MR. GEHRMANN: Thank you. I'm Bill314

1 Gehrmann with Headwaters Resources. We're the

2 largest marketer and manager of coal combustion

3 products in the United States.

4 As the A dministrator has said, it's time

5 for a commonsense approach. Coal ash does not

6 q ualify as a hazardous waste based on its

7 toxicity. In fact, the EPA's proposed engineering

8 standards are essentially the same under both the

9 Subtitle C hazardous waste and Subtitle D

10 nonhazardous waste approaches.

11 The other piece to addressing disposal

12 of coal ash is recycling. Over 40 percent of coal

13 ash is beneficially used. As the EPA has pointed

14 out , using fly ash as a partial cement replacement

15 for Portland cement in concrete reduces greenhouse

16 gas emissions. This use of coal ash also provides

17 significant engineering benefits. These

18 engineering benefits result in substantial

19 increases in the life cycles of the products

20 they're used in. Roads last longer

-- twice as

21 long

-- stretching the dollars that we as

22 taxpayers spend on building and maintaining our315

1 infrastructure.

2 The stigma of hazardous waste that is

3 already be ing attached to coal ash due to the

4 potential of a Subtitle C designation will result

5 in more coal ash being landfilled, more greenhouse

6 gas emissions, and more tax dollars being required

7 to improve our infrastructure. This stigma has

8 already led to the specifiers moving coal ash from

9 their specifications. Competitive product

10 suppliers are using the negativity of the Subtitle

11 C hazardous waste designation in their

12 advertising. End users of coal ash have already

13 begun to assess their liabilities under a Subtitle

14 C designation with their lawyers and insurance

15 carriers. Efforts to push these liabilities down

16 the supply chain have already begun impacting many

17 small businesses that have been built around

18 products and service based on the recycli ng of

19 coal ash. These businesses are facing tough

20 decisions, and many will likely be forced out of

21 business by a hazardous waste designation.

22 As for the incentives of Subtit le C,316

1 I've been in the industry for 25 years. When

2 recycling first started, it was often subsidized

3 or the material was gi ven away. It wasn't until

4 the waste stigmas of the use of the project had

5 been addressed that any efforts to substantially

6 increase recycling started to take place. This

7 also came th rough the EPA's support of recycling

8 through its coal combustion products partnership.

9 That support has helped promote the beneficial use

10 of coal ash and has helped increase recycling by

11 almost 50 percent.

12 Don't turn around and start sending all

13 of that coal ash that could be beneficially used

14 into landfills instead. The stigma associated

15 with Subtitle C has already begun to do this. If

16 the desire of the EPA is to have federal

17 jurisdiction, find another way. Don't do it under

18 Subtitle C. Don't send more coal ash to the

19 landfill. Th ank you.

20 MS. DEVLIN: Thank you. Okay, number

21 104?

22 MS. REED: Hello. My name is Barbara317

1 Reed. My family and I live on Georgetown Road in

2 Greene Township, Pennsylvania. We're a short

3 distance from the Little Blue Compound. My son's

4 home is on Crummett Lane. The Little Blue

5 Compound is approximately a thousand yards from

6 his well.

7 We carry 15 to 20 gallons of water a

8 week to drink and cook with because our water

9 tastes like salt, is cl oudy, and has a sediment in

10 it. At times it has a foul odor of rotten eggs.

11 We can't wash our vehicles at home because our

12 water leaves a white filmy residue on them. The

13 water holdi ng tank of our toilets forms a nasty,

14 globby gel if we don't put swimming pool

15 chlorinating tablets in it. As you can see by my

16 exhibits, our water corrodes the faucets and the

17 elemen ts and pipes of our hot water tank. We have

18 to replace them every couple of years.

19 In 2009, our motorcycle was sitting on

20 the back porch, which is open on three sides and

21 ha s a roof over it. We had a bad wind and

22 rainstorm. When the storm ended, the bike and the318

1 porch were covered in dust. Later, when we

2 cleaned the bike, the dust had pitted the chrome

3 and caused surface rust.

4 My son's water was tested and showed to

5 have an arsenic level of 14.60 UGLs, which is

6 h igher than the maximum contaminant level

7 contained in the national primary drinking

8 regulations of 10 UGLs. There was also levels of

9 mercury, thallium, manganese, and aluminum found

10 i n his well. First Energy has done nothing about

11 either well other than testing and sending us the

12 results with a letter stating, "If you have any

13 questions regarding the domestic use of this water

14 source, please contact the Pennsylvania Department

15 of Environmental Protection." The DEP's letter

16 stated, "Please note Pennsylvania does not have

17 requirements or regulations for private w ater

18 systems, and, therefore, these levels are only

19 listed as recommendations for comparison."

20 My question is what are we supposed to

21 do about our properties in a rural farmi ng

22 community, thinking we had a safe place to live319

1 for the rest of our lives? If we had known about

2 the impact of the Litt le Blue Compound would have

3 on us, we'd have chosen somewhere else to live.

4 Now we're stuck. Our property values have

5 decreased. Our water is not drinkable. Who would

6 want to buy ou r homes and live under these

7 conditions?

8 My son now lives with us because of the

9 contaminants in his well. But he still has to

10 make his monthly mortgage payments and is afra id

11 to live in his home that he bought to start his

12 future of independence.

13 We believe the First Energy fly ash dump

14 has caused a higher number of cancer and other

15 illnesses in our community and many financial

16 issues. So please, for the health and welfare of

17 our residents of many communities and mine,

18 support Subtitle C. Thank you.

19 MS. DEVLIN: Thank you. Going back,

20 we're going to do number 90, number 95, number

21 109, and number 129.

22 MR. MASON: Good afternoon. My name is320

1 Roy Mason of the law firm of Mason & Kaywood, and

2 I'm here to speak on behalf of the designation of

3 coal ash as special waste and Subtitle C.

4 I represent approximately 600

5 individuals who live in Chesapeake, Virginia. In

6 2001, a power company

-- Dominion Power

-- came to

7 Chesapeake, Virginia, and presented at a church

8 meeting and at other community meetings that the

9 1.5 millions tons of ash that they were about to

10 try to utilize to build a golf course would be

11 "safe as dirt." They did this because earlier

12 attempts to dump this ash in a landfill in the

13 community were turned down by the community.

14 The community now knows that they were

15 misled, but at the time some of the community

16 members actually went down to the City of

17 Chesapeake and asked the City of Chesapeake to

18 please allow this use of coal ash. They had no

19 idea it was dangerous, and for five years

20 approximately a hundred trucks a day trucked coal

21 ash out to a site which was effectively in the

22 dismal swamp. The sand that was present at the321

1 site was sold, the water table was approximately 2

2 feet, and the holes into which this coal ash was

3 dropped and dumped were sometimes 30 or 40 feet

4 deep. The ash has

-- no w it's just a mere two or

5 three years later

-- the ash has contaminated the

6 aquifer underneath the site, exactly opposite of

7 what was told to the community.

8 Now the community is told a different

9 thing. The community is told, well, it's not to

10 your wells yet, so what are you complaining about?

11 The community is told we'll provide some public

12 water for you, so what are you complaining about?

13 What the community is complaining about is they

14 didn't ask to have their aquifer contaminated.

15 They asked simply to be told the truth, and if the

16 tru th had been told that site would have never

17 been allowed to go forward. Thank you.

18 MS. DEVLIN: Thank you. Number 95?

19 MR. PETTY: My name's Bill Petty. I'm

20 here representing Environmental Defense Fund. EDF

21 is a leading national nonprofit environmental

22 organization representing more than 700,000322

1 members. EDF members live all over the United

2 States, and we have offices in regions that rely

3 heavily on coal.

4 Today, EDF has three primary comments on

5 the pro posed regulations. First, we recommend

6 regulating coal combustion residuals under RCRA

7 Subtitle C. Second, we discuss concerns with

8 respect to the proposed approach to beneficial

9 use s. And finally, we support EPA's preference

10 for promulgating regulations for surface

11 impoundments similar to those promulgated by the

12 Mine Safety and Health Administration.

13 EDF believes that CCRs should be

14 regulated as special waste under Subtitle C.

15 According to EPA's own scientific risk assessment,

16 CCRs meet the criteria necessary to list under

17 Subtitle C due to their toxicity, the potential

18 for the hazardous constituents to migrate or

19 bioaccumulate, and plausible mismanagement of the

20 waste, as well as cases in which damage to human

21 health or the environment has been proven, such as

22 the Kingston, Tennessee, disaster.323

1 In addition to established risk, CCRs

2 pose other threats that have not been fully

3 explored by the EPA. For materials of this

4 character, Subtitle C is far more appropriate than

5 Subtitle D, because it is expected to achieve far

6 greater compliance and because it includes a

7 comprehensive cradle

- to

- grave approach that is

8 lacking under Subtitle D. Such a cradle

- to

- grave

9 approach is absent from EPA's proposal for

10 beneficial uses.

11 EDF supports safe beneficial uses of

12 CCRS. However, for any proposed encapsulated

13 beneficial use to be considered safe would require

14 consid eration of the risks over the full life

15 cycle, including risks from production, use,

16 recycling, and reuse, and ultimate disposal of

17 both CCRs and any products or materials containing

18 t hem with proper attention given to the type of

19 CCR proposed to be used.

20 Evaluating safety at all phases of the

21 life cycle of a proposed use requires extensive

22 information abo ut the CCR constituents, including324

1 total metal content, chemical and physical form,

2 fate and transformation potential, leachability,

3 and other factors related to the capacity of

4 contaminants to become bioavailable under a broad

5 range of real

- world conditions. Safety also

6 requires an ability either to track and monitor

7 any such use over its full life cycle or to ensure

8 that no appreciable risk would arise under

9 worst

- case scenarios.

10 As for unencapsulated beneficial uses,

11 these pose direct risk to the environment and

12 human health and, when allowed, should be

13 regulated under Subtitle C.

14 Finally, EPA should adopt MSHA

- style

15 regulations for the storag e of wet CCR waste and

16 all surface dams and impoundments. Such

17 regulations would require facilities to conduct

18 and submit to the EPA or the state important plans

19 for the design, const ruction, and maintenance of

20 existing impoundments, plans for closure

, and to

21 conduct periodic inspections by trained personnel.

22 Due to the toxicity of CCRs and the number of325

1 high

- hazard facilities, such regulations should

2 apply regardless of size. Thank you very much.

3 MS. DEVLIN: Thank you. Number 109,

4 please. All right, number 129?

5 MS. OMAN: Good afternoon. My name is

6 Alicia Oman, and I am the director for Energy and

7 Resources Policy at the National Association of

8 Manufacturers. The NAM is the largest industrial

9 trade association in the United States,

10 representing over 11,000 small, medium, and large

11 manufacturers in all 50 states. We are the

12 leading voice for the manufacturing economy in

13 Washington, D.C., which provides millions of

14 high

- wage jobs in the United States and generates

15 more than $1.6 trillion in GDP. In addition, 80

16 percent of NAM members are small businesses, which

17 serve as the engine for job growth.

18 EPA's proposal to regulate the disposal

19 of CCRs will have a direct impact on many of our

20 member companies. Not only will it impact the

21 utilities and CCR generators that will have to

22 comply with the new disposal requirements, but it326

1 will also directly impact the nearly 2,000

2 companies that may use CCRs to manufacture

3 products. The NAM and its members appreciate the

4 opportunity to provide the foll owing comments.

5 Manufacturers are attempting to fully

6 recover from the steepest economic downturn since

7 the 1930s and bring back the 20 million high

- wage

8 jobs lost during th e previous recession. Federal

9 policymakers should create conditions that will

10 lead to economic expansion and not stifle the

11 vitality necessary to create jobs. The NAM and

12 its member companies are confronting an avalanche

13 of additional rules and regulations from EPA,

14 including the reconsideration of the 2008 Ozone

15 Standard, the Boiler MACT rule, and the imposition

16 of first

- time federal regulations on greenhouse

17 gas emissions.

18 The NAM strongly opposes the regulation

19 of CCRs as a special listed waste under Subtitle C

20 of RCRA. Regulating CCRs under Subtitle C would

21 place unworkable facility and operational

22 requirements on utilities and other generators of327

1 CC Rs, and create an immediate and critical

2 shortfall in hazardous waste disposal capacity.

3 This increased regulatory burden is likely to

4 result in higher energy costs for all

5 manufacture rs.

6 Manufacturers are especially vulnerable

7 to high energy costs, and a noticeable increase in

8 the price of energy will derail any hope of a

9 robust economic recovery, prevent ing Americans

10 from getting back to work. Reclassification of

11 CCRs as a hazardous waste is likely to increase

12 transportation costs both for power generators and

13 manufacturers who gener ate their own CCRs by

14 channeling materials to sites that are designated

15 to handle hazardous waste. One food processing

16 facility that generates CCRs estimates their cost

17 for transporta tion and disposal could increase

18 from $120,000 to approximately $20 million per

19 year.

20 In addition, manufacturers are concerned

21 that the Subtitle C option will result in the l oss

22 of important high

- paying jobs in the CCR328

1 beneficial reuse market. Federal policy should

2 encourage the beneficial reuse of industrial

3 byproducts and other manufacturing initiatives

4 that make economic and environmental sense.

5 Thank you, and we look forward to

6 submitting our comments.

7 MS. DEVLIN: Thank you. Okay, numbers

8 114, 123, 124, and 125, if you're here.

9 MR. ELLIS: Good afternoon, 114. Thank

10 you for the opportunity to speak today. My name

11 is Phillip Ellis and I represent the Sierra Club

12 Sustainable Metro D.C. Campaign.

13 When we first heard about this hearing

14 and we began to educate our membership on the

15 differences between Option C

-- Subtitle C and

16 Subtitle D, we were overwhelmed by the response

17 that we received. In addition to turning out at

18 the hearing today to express their opinion, we

19 received an enormous amount of letters for people

20 who could not make it here today, and I'm here to

21 read one such letter. This one i s by Antoinette

22 Frank, who lives in Stafford, Virginia

.329

1 "The coal industry has dumped its toxic

2 coal ash in nearly 600 communities across the

3 United States of America. A coal industry

4 executive said this waste is safe enough to eat.

5 Actually, this toxic ash contains arsenic,

6 mercury, selenium, lead, and other highly toxic

7 pollutants." And in her w ords she politely says,

8 "Is this something that you want to eat for

9 breakfast?"

10 "Dirty coal

- fired power plants produce

11 over 140 million tons of coal ash each year.

12 People living near the dump sites are drinking

13 contaminated groundwater. No wonder the mortality

14 rate is 600 people more per year in coal regions

15 than the rest of our nation. The toxins in coa l

16 mining waste are known to cause cancer, birth

17 defects, and neurological disorders. Research

18 shows that coalfield residents suffer high

19 occurrences of cancer and other health problem s.

20 "In 2008, the Tennessee Valley coal ash

21 disaster

-- a massive spill at Kingston Fossil

22 Plant near Knoxville, Tennessee

-- released 1330

1 billion gallons of coal ash sludge, which

2 contaminated 400 acres of land in the Emory and

3 Clinch Rivers. Months after the spill, children

4 were having respirator y problems and one man died

5 of seizures. Fish swimming near the spill were

6 found to have high levels of toxins, including

7 arsenic and selenium. Fish were found with their

8 gills compl etely closed in coal ash sediment.

9 Studies found the level of arsenic 260 times and

10 lead 16 times the federal drinking water standards

11 at the TVA site. High levels of arsenic cause

12 ca ncer. Also there was a higher

- than

- normal level

13 of selenium, which causes neurological problems.

14 The fly ash present probably irritated people's

15 skin and caused asthma. TVA people cannot drink

16 their well water because of elevated levels of

17 arsenic. Would you want to live there?"

18 And then she finishes her reply

-- her

19 letter by saying, "Coal ash is deadly."

20 And I, like Antoinette, who represents

21 our membership who couldn't speak here today, urge

22 you to treat coal ash under Subtitle C and treat331

1 it for what it truly is: Hazardous waste. Thank

2 you.

3 MS. DEVLIN: Thank you. Number 123?

4 MS. NOVEY: My name is Joelle Novey.

5 I'm w ith Greater Washington Interfaith Power and

6 Light. Through Greater Washington Interfaith

7 Power and Light hundreds of congregations of all

8 religious traditions work together on energy and

9 climate issues. And today, I'm joining local

10 religious leaders in asking that the EPA adopt

11 Subtitle C option and protect communities from

12 toxic coal ash. At each of the subsequent

13 hearings, you'll be hearing from Interfaith Power

14 and Light groups around the country. And over the

15 coming months, many of the 10,000 congregations in

16 this movement will be sending our message to th e

17 EPA in written testimony.

18 The teaching, from my own tradition,

19 that informs my thoughts on this come from Rabbi

20 Isaac Ben Sheshet, a 14th century scholar of

21 Jewish law. He wrote, "One is forbidden from

22 gaining a livelihood at the expense of another's332

1 health." Simple, ethical wisdom. Not bad for

2 Medieval Spain.

3 For too long

-- here, now

-- coal

4 companies have been permitted to gain their

5 livelihoods at the expense of people's health.

6 Coal ash co ntains arsenic, lead, mercury, and

7 other toxins that have been linked to organ

8 disease, respiratory illness, neurological damage,

9 and developmental problems. When this ash is

10 dumped i n unlined landfills or ponds, it raises

11 cancer rates in the nearby communities. The

12 Environmental Integrity Project has named 137

13 sites in 34 states, including Virginia, where coal

14 as h is leaching arsenic into the water. It should

15 be forbidden in this country for coal companies to

16 make their livelihood at the expense of people's

17 health.

18 In the religious communities with which

19 I work, people are heartsick about the role of

20 coal power in producing the heat

- trapping gases

21 that are causing global climate change. They are

22 working to reduc e their electricity use in their333

1 sanctuaries and at home. They are using their

2 energy dollars to support wind energy generation,

3 and they are figuring out how to put solar panels

4 on their roofs.

5 So often we are told that the change we

6 are trying to make is unrealistic because clean,

7 renewable en ergy is so expensive, while coal power

8 is cheap. In fact, coal power is intolerably

9 expensive, but its true costs are borne by others.

10 Who bears the cost of the permanent destruction of

11 a mountain through mountain

- top removal mining?

12 Who bears the cost of stronger storms, devastating

13 floods, and other extreme weather caused by global

14 climate change? And who bears the cost of dumpin g

15 toxic coal ash as if it were just dirt, causing

16 sickness in our communities? By insisting that

17 coal companies bear the cost of disposing coal ash

18 safely, we take a truer measure of the real cost

19 of coal power.

20 Please adopt the Subtitle C option.

21 Coal companies shouldn't be allowed to make people

22 sick. Thank you.334

1 MS. DEVLIN: Thank you. Number 124,

2 please? Number

-- you're number 124?

3 SPEAKER: He's on his way. He's just

4 (inaudible).

5 MS. DEVLIN: Okay. Is 125 here

6 (inaudible) we wait for 124? No. He'll speak

7 when he gets here.

8 Numbers 126, 142, 147, and 165, are any

9 of you in the room? Okay.

10 MS. GREENLEE: Yeah, 147.

11 MS. DEVLIN: 147, thank you.

12 MS. GREENLEE: Hi. My name is Emily

13 Greenlee, and I work in the New York offic e of

14 Earthjustice. Thank you for the opportunity to

15 testify in favor of the need for federally

16 enforceable safeguards to protect human health and

17 the environment from toxic coal ash.

18 Over the past year, I have spent a great

19 deal of time researching coal combustion waste and

20 have learned about the dangers of coal ash stored

21 in unlined ponds where it can co ntaminate

22 groundwater with toxins like arsenic and lead.335

1 EPA's own data shows that coal ash can contaminate

2

-- can increase cancer risk for those living

3 nearby to over 2,000 times the EPA's acceptable

4 cancer risk. Coal ash from an American company

5 has also been blamed for a spate of skin lesions,

6 respirat ory ailments, and horrific birth defects

7 in the Dominican Republic.

8 Given the serious health threats posed

9 by coal ash, it is particularly troublesome that

10 coal ash impoundme nts are disproportionately

11 located in low

- income communities where residents

12 are more likely to rely on groundwater supplies

13 and less likely to have access to quality medical

14 insurance and care. According to the EPA's own

15 environmental justice analysis for the proposed

16 coal ash regulations, the myriad risks of coal

17 combustion waste "may have a disproportionately

18 hi gher effect on low

- income populations."

19 Earthjustice's environmental justice analysis

20 found that almost 70 percent of ash impoundments

21 in the U.S. are in areas where household income is

22 lower than the national median. I would like to336

1 enter into the record three maps showing poverty

2 rates and the location of ash impoundment s in

3 Alabama, Louisiana, and South Carolina. Here's a

4 copy for each of you.

5 MS. DEVLIN: Oh, good, thank you.

6 MS. GREENLEE: In South Carolina, about

7 16 percent of residents living near ash

8 impoundments are below the poverty line. That

9 number climbs to around 25 percent in Louisiana.

10 These figures are well above the national average.

11 In Alabama, a map of which can be seen on this

12 poster, about one

- fifth of residents living near

13 coal ash ponds are below the poverty line. All

14 areas that show up in blue on the map have poverty

15 rates that exceed the national average.

16 Most notoriously, the Arrowhead landfill

17 in Perry County, where there's a poverty rate of

18 about 33 percent, has been the dumping grou nd for

19 ash recovered after the TVA ash spill in Kingston,

20 Tennessee, in December of '08. The ash flowing

21 into this low

- income and predominately African

-

22 American community at a rate o f about 8,500 tons337

1 per day contains dangerous levels of arsenic,

2 lead, and other heavy metals.

3 Strict federal gui delines are needed to

4 protect the low

- income populations living near

5 Arrowhead and other ash impoundments, particularly

6 because Alabama is one of 15 states that has

7 explicitly stated t hat it will not adopt stricter

8 state regulations if EPA chooses to regulate ash

9 under Subtitle D. As the TVA spill and dozens of

10 other damage cases have demonstrated, state

11 regulation s of coal ash are often insufficiently

12 protective of human health and the environment.

13 Only federally enforceable Subtitle C regulations

14 can fully protect human health and the environment

15 from coal ash in low

- income communities and

16 throughout the United States. Thank you.

17 MS. DEVLIN: Thank you. All right, is

18 number 124 or 125 here now? Okay.

19 MR. FAIR: My name is Henry Fair, and

20 I'm an artist from New York. I've had many

21 opportunities to look at coal ash and to study it

22 and document it, and it seems well known that coal338

1 ash is rife with many contaminants

-- arsenic,

2 lead, mercury, many other things more or less

3 harmful

-- and it should be regulated as the toxi c

4 waste that it is under

-- what is it?

-- ph ase C?

5 Thank you. I've seen many coal ash impoundments

6 around the world. Most of them are unlined,

7 leaching into groundwater. And again , knowing

8 what we know is in these impoundments it seems a

9 little foolish not to regulate it as toxic waste.

10 And the other things that happen with

11 coal ash are

-- I think sho uld be questioned as

12 well, but that's not what we're talking about

13 here, so mostly that we need to regulate coal ash

14 as the toxic waste that it is. Thank you.

15 MS. DEVLIN: T hank you. Number 99? And

16 then I'd like to go back to 204, 206, and 207.

17 Are you here? Okay, number 99 first.

18 MR. BALL: Hi, good afternoon.

19 MS. DEVLIN: Good aft ernoon. Thank you.

20 MR. BALL: My name's Drew Ball. I'm the

21 political project representative for Sierra Club,

22 formerly the state director of government339

1 relations for the North Carolina Sierra Club.

2 We applaud EPA for recognizing the very

3 real health and environmental risk posed by toxic

4 coal ash. Given the seriousness of these risks,

5 enforceable federal safeguards, not suggested

6 state guidelines, are necessary to protect

7 communities. Having done extensive work on coal

8 ash within North Carolina, particularly with North

9 Carolina state government, I can say firsthand

10 that some states are not doing an adequate job of

11 protecting communities from the dangers of coal

12 ash. Strong federal safeguards needs to be issued

13 quickly before more communities are exposed.

14 Continuing to ignore scientific and safety

15 concerns could come at a very high cost.

16 North Carolina issued

-- I'm sorry, the

17 North Carolina Sierra Club issued a report on

18 April 11th

-- April 12th of this year documenting

19 how a lack of federal controls and weak sta te

20 regulations have created a gaping loophole,

21 allowing an unknown volume of coal ash to be

22 disposed of with very little oversight and340

1 uncertain impacts to public health. This lack of

2 oversight is placing the health of North

3 Carolinians and our environment at risk. While

4 some processes may render coal as h inert and,

5 therefore, suitable for reuse, such as use in

6 additive concrete, North Carolina's practice of

7 allowing coal ash to be placed on the ground as

8 fill material for land develo pment with minimal

9 oversight

, has led to numerous problems. These

10 problems include groundwater contamination,

11 surface water contamination, sham landfills,

12 environmental violations, an d a failure to track

13 locations of coal ash fills. The lack of federal

14 regulation is what has led to the current failed

15 patchwork of state protections against coal ash.

16 Class ification of coal ash under

17 Subtitle C would provide basic environmental and

18 public health safeguards backed up with

19 enforcement and financial accountability. It is

20 far more protectiv e than the status quo option

21 under Subtitle D and covers coal ash from cradle

22 to grave. Under the strong option, coal ash sites341

1 would have to be permitted. It would be required

2 to take basic safety precautions, install liners,

3 water runoff controls, groundwater monitoring, and

4 dust controls

-- much of which is lacking in North

5 Carolina.

6 Along with these comments, I'm

7 submitting the report issued by the North Carolina

8 Sierra Club that they released on April 12 of 2010

9 I menti oned earlier. So with that, I ask the EPA

10 to please protect our communities, our families,

11 and our environment by classifying coal ash under

12 Section C of the Resources Conservation Recovery

13 Act.

14 Thank you for allowing me to speak

15 today.

16 MS. DEVLIN: Thank you. Number 204?

17 206? 207?

18 MS. EVANS: I feel like I should o rder

19 half a pound of ham or something.

20 My name is Lisa Evans. I am senior

21 administrative counsel for Earthjustice, a

22 nonprofit environmental law firm. I want to thank342

1 you for the opportunity to speak at EPA's first

2 public hearing. I also want to express my sincere

3 appreciation for EPA's willin gness to hold seven

4 public hearings on this critical issue.

5 The decision facing EPA is of monumental

6 importance, but it is not unprecedented. There

7 are clear, legal mandates for this rulemaking that

8 the agency cannot ignore. The proposed regulation

9 of coal ash as a special waste under Subtitle C,

10 is dictated by the specific mandates of the Bevill

11 Amendme nt, the regulatory definition of hazardous

12 waste, and EPA's guidance concerning reduction of

13 cancer risk. A special waste designation is the

14 only option consistent with Administrator

15 Jackson's pledge to rely on "sound science and

16 risk

- based criteria protective of human health and

17 the environment."

18 Many who oppose Subtitle C regulations

19 want you to look ba ck to the days when the TVA dam

20 still stood, when we knew nothing of 70 additional

21 damage cases, and when the TCLP test was not

22 deemed irrelevant. They would have you ignore343

1 your new leach test that reveal arsenic leaching

2 from ash at many times the threshold for hazardous

3 waste. They would have you disregard state data

4 documenting contaminated water at dozens of sites

5 across the nation. They would prefer you forget

6 the conclusions of the National Academy of

7 Sciences, the EPA Science Advisory Board, a nd your

8 own peer

- reviewed risk assessment. Lastly, they

9 would have you disregard the gross deficiencies of

10 an existing state law, which allow some of the

11 largest coal states to avoid entirely the

12 regulation of coal ash.

13 In short, you are asked to base this

14 critical rule on facts frozen in the last century.

15 This course is as illegal as it is foolhardy. We

16 trust that you will not join them in their

17 way

- back machine. This law requires your decision

18 be based on 21st century data and science.

19 Further, the current reality of coal ash

20 mismanagement by states across the nation requires

21 a rural design to resolve this problem.

22 Albert Einstein once said the definition344

1 of insanity is doing the same thing over and over

2 again expecting different results. Issuing

3 guidelines under Subtitle D or, worse, under

4 Subtitle D prime, and expecting a change in the

5 status quo of state mismanagement is certainly

6 madness. Despite the passage of over three

7 decades since Congress has enacted RCRA, many

8 states still by law allow gros s mismanagement of

9 coal ash, and most states routinely fail to

10 enforce existing Subtitle D guidelines that apply

11 to ash. Consequently, EPA must ask if states

12 after 36 years have nei ther established their own

13 reasonable requirements for ash and not enforced

14 existing federal guidelines, why would additional

15 unenforceable guidelines change the status quo?

16 We respectfully ask EPA to correct and

17 not repeat the mistakes of the past. Let sound

18 science and law, not outmoded data and conjecture,

19 guide your decision. We ask you to act wisely and

20 without delay to protect, at long last, our

21 health, our drinking water, and our environment

22 from further harm.345

1 MS. DEVLIN: Thank you. Okay, numbers

2 208, 209, 210, 212.

3 MR. SWARTZ: 108? Is that

-- did you

4 skip over me?

5 MS. DEVLIN: 108? I hadn't gotten to

6 108, but

--

7 MR. SWARTZ: Okay.

8 MS. DEVLIN:

-- 108.

9 MR. SWARTZ: Okay, good.

10 MS. DEVLIN: No, I'm just going to

--

11 MR. SWARTZ: Is that all right?

12 MS. DEVLIN: Sure.

13 MR. SWARTZ: I wasn't sure

--

14 MS. DEVLIN: No, come ahead. 108 is

15 fine.

16 MR. SWARTZ: Hello. My name is Stephen

17 Swartz, and I'm co

- owner of New Age Faceting

18 Systems, who is a developer of a branded

19 expandable abrasive, New Age Blast Media.

20 App roximately six years ago, my company

21 started to explore the uses of recycled crushed

22 bottle glass for gri t blasting, which in large346

1 part was prompted by our desire to find a better

2 and safer product over slag abrasives like coal

3 slag. We have a small plant in Sewell, New

4 Jersey, that has partnered with local towns to

5 reduce piles of recycled glass that were destined

6 for landfills. We have over eight employees

7 working at the plant and could easily double that

8 amount in the future. Our decision to ente r the

9 abrasive manufacturing business was ironically

10 fueled by studies done by the EPA, NIOSH, and OSHA

11 that proved how toxic slag abrasives like coal and

12 copper are compared to other abrasives like garnet

13 and crushed glass.

14 The reason is that after being blasted the

15 particles are shattered, and the unencapsulated

16 dust is a major human health and environme ntal

17 concern. When we discovered that 13 million tons

18 of glass is dumped into landfills, we felt there

19 was an opportunity to provide a competitive

20 product that was safer than slags. Today there

21 are many other small businesses like ours that are

22 also trying to sell crushed glass and other347

1 abrasives that a re nontoxic and inert.

2 I thought it was important that I gave

3 you this background information, but the real

4 reason I'm here is not to discuss crushed glass,

5 but as a voice of a small business owner who feels

6 that we have been placed in an unfair competitive

7 position by the past decision of the EPA in 2000

8 to classify boiler slag abrasives as part of the

9 be neficial

- use program.

10 Since that time, there have been many

11 well

- documented studies by EPA, OSHA, and NIOSH

12 that confirm that coal slag when used as an

13 abrasive is harmful t o human health and the

14 environment. This is a clear violation of the new

15 beneficial

- use criteria announced on May 4th by

16 Director Jackson, and the EPA should finalize its

17 decision in their new CCR proposed rule to drop

18 slag abrasives from the program. We

19 wholeheartedly agree that Director Jackson

-- that

20 there needs to be a new commonsense approach to

21 allowing a C CR product into the beneficial use

22 program. The EPA's beneficial use approval for348

1 slag abrasives has, therefore, amounted to a

2 federal subsidy of coal slag.

3 The past actions by the EPA for slag

4 abrasives have directly impaired small companies

5 trying to compete against coal slag by denying us

6 a l evel playing field. This has meant less jobs

7 and less ability to open new plants to crush

8 glass. Most of our glass actually comes from

9 people who drank beverages in it. Coal slag waste

10 comes directly from coal

- fire d power plants.

11 Thank you very much for allowing me this

12 time to not only represent New Age, but a growing

13 small business segment with similar interests on

14 the issue. We trust that the EPA will make the

15 proper ruling in this matter that takes into full

16 account all the human safety and environmental

17 concerns that have been well documented. Thank

18 you.

19 MS. DEVLIN: Thank you. At this time, I

20 want to ask does anyone have a number under 115

21 that I have not called that would like to speak at

22 this time?349

1 Okay. Then I have numbers 217, 218,

2 219, and 220. Are any of you here? Okay.

3 SPEAKER: There' s one back there.

4 MS. DEVLIN: 220, come

-- whoever could

5

--

6 MR. COLLINS: I'm just using the tape.

7 MS. DEVLIN: That's fine. Just go

8 a head.

9 MR. COLLINS: Hello. My name's Thomas

10 Collins. I'm with Separation Technologies. I'm a

11 Northeast sales rep for the company, and, you

12 know, I just wanted to talk abou t, you know, I'm

13 strongly opposed to Subtitle C.

14 I'm pretty proud of what I do. I mean,

15 we

-- our company takes a product that is

16 otherwise bound for a landfill and makes it usable

17 for any concrete or concrete products, and one of

18 the things that I do each and every day is market

19 that product to ready

- mix producers, concrete

20 producers. And this topic

-- the regulation comes

21 up an awful lot here over the past year. And one

22 of the things that they keep telling me is if it's350

1 d esignated Subtitle C

-- or hazardous

-- if there's

2 a hazardous designation in any way, shape, or form

3 with this

-- with fly ash, what they'll do is they

4 will stop using it. So, it's going to create a

5 negative stigma associated with the product, and,

6 you know, I just

-- that's basically what I wanted

7 to say.

8 And one of the other things that I think

9 that, y ou know, needs to be considered is these

10 companies use this product, you know, obviously to

11 create better margins. And with that, if you

12 eliminate the product from being used, beneficial

13 use, what's going to happen

-- you know, what I'm

14 concerned with and they're concerned with is, is

15 the margin going to be reduced? So they're going

16 to have to cut costs at some point, and that

--

17 you know, cutting the costs is probably going to

18 come with manpower.

19 So, other than that, I just oppose the

20 Subtitle C, and that's it. Thank you.

21 MS. DEVLIN: Thank you. At this time,

22 I'm going to ask is there anyone else in the room351

1 who has a number to speak? Can you please come

2 forward and we'll allow you to speak now?

3 At this point I'm asking for any number

4 right now. I've lost

-- and if you could say your

5 number and your name when you come up, we'll run

6 through these for about the next 15 minutes or so.

7 MR. HUEY: Yeah, it's number 146.

8 MS. DEVLIN: Thank you.

9 MR. HUEY: And Jason Huey, with

10 Separation Technologies, our operations manager at

11 our facility up in York Haven, Pennsylvania. I

12 appreciate you guys taking the time to talk with

13 all of us today. I also oppose the possible

14 regulation under Subtitle C of the fly ash.

15 Within Separation Technologies

-- give

16 you a little background

-- what we do is we take

17 an otherwise unusable material

-- the fly ash that

18 comes out of the utility based on the LOI in ASTM

19 specifications is not adequate. It cannot be used

20 in concrete applications. We take that fly ash

21 and we process it so that we can remove the

22 carbon. By doing so, we turn an otherwise352

1 unusable material into something that has value

2 both economica lly as well as environmentally. We

3 take material that would be going into a landfill

4 and process it so that it can be sold to the

5 concrete industry.

6 A couple of benefits tha t has to the

7 environment, one of which is the material's not

8 going into the ground. This year we'll sell about

9 200,000 tons, so that'll be 200,000 tons of

10 material not going into the ground, but, rather,

11 going into concrete.

12 The other advantage is whenever it's

13 used in concrete, it's done so as a replacement

14 for Portland cement. The manufacturing of

15 Portland cement is a fairly energy

- intensive

16 process. They say that for one ton of Portland

17 cement it generates one ton of CO2. So, not only

18 are we preventing material from going into th e

19 ground, additionally, the use of that material was

20 preventing CO2 generation by replacing Portland

21 cement. So, in all, I feel that our processing of

22 the fly ash is a good story envi ronmentally for353

1 those couple reasons.

2 Subtitle C, if it were to get that

3 designation

-- basically what would happ en was

4 there would be this public perception associated

5 with it. Even though being used in concrete would

6 be considered a beneficial use and would be

7 allowed, still some of our custom ers as well as

8 some of the people that purchased that concrete I

9 think would have a public perception to the extent

10 that how are they going to make that determination

11 of something bein g hazardous that goes in the

12 grounds, but yet they can put in their basement

13 floor and let their kid crawl on it and all of a

14 sudden it's nonhazardous because it's locked up in

15 concret e.

16 So, we do feel that that public

17 perception will be there and that any type of

18 hazardous designation associated with fly ash will

19 have a negative impact both on the materia l itself

20 that's sellable to concrete as well as the

21 environment. Because, again, by not putting that

22 material in the ground as well as preventing that354

1 CO2 generation from Portland cement, it's a good

2 story for the environment.

3 All right, thank you.

4 MS. DEVLIN: Thank you.

5 MR. QUINN: 128.

6 MS. DEVLIN: 128, thank you.

7 MR. QUINN: Good afternoon. My name is

8 Tom Quinn, and I'm a resident of Washington, D.C.

9 I'm here tod ay to read into the record a statement

10 from Mr. Scott Burger of Richmond, Virginia. Mr.

11 Burger's statement follows.

12 "I've lived around coal ash most of my

13 life either here i n Richmond or growing up in

14 Norfolk. I'm tired of seeing the coal dust darken

15 everything. It's a reminder that it's likely that

16 years have been knocked off my lifespan and that

17 of ot hers ’ , and so much of the environment has been

18 polluted."

19 Speaking for myself as a resident of the

20 District of Columbia, I'm resident of one of the

21 only state

- level jurisdict ions that does not have

22 to grapple with the permanent toxicity of coal355

1 ash. However, my local electricity supplier,

2 PEPCO, receives about 50 percent of its

3 electricity from coal

- fired power plants. So I

4 may be blessed by geographic good fortune and far

5 removed from this problem, the responsibility for

6 th is mess rests on all of us.

7 The lack of federally enforceable

8 regulations on coal ash means that those of us

9 many miles from coal

- fired power plants enjoy

10 cheap but dirty ele ctricity while shifting the

11 environmental costs of that power to citizens like

12 Mr. Burger, who may not have the option to move.

13 But no person, community, or ecosystem should have

14 to to lerate the lax enforcement of this toxic

15 substance any longer, which is why I'm urging you

16 to regulate coal ash under Subtitle C of the

17 Resource Conservation and Recovery Act.

18 Thank you for listening, and thank you

19 for your time.

20 MS. DEVLIN: Thank you. Great.

21 MR. THOMAS: I'd like to thank you for

22 allowing me to testify today. My nam e is Steve356

1 Thomas, and I reside in the Commonwealth of

2 Pennsylvania and have a B achelor of S cience degree

3 in environmenta l resource management. I'm

4 presenting this public comment to you today on my

5 own behalf.

6 I'm a supporter of the establishment of

7 a national criteria for disposal of coal

8 combustion residuals. I'm also an advocate for

9 conservation of our natural resources, which we

10 are so gifted to have in our great country. One

11 way we conserve these viable resources is through

12 recycling. Whether we as individuals separate our

13 paper, glass, metal, and other household waste for

14 curbside recycling or, as a business, purchase

15 products made with recycled components or as a

16 company which beneficially uses coal combustion

17 residuals, the environmental benefits are

18 substantial and have been well documented.

19 The Environmental Pro tection Agency

20 should be promoting recycling. However, when it

21 comes to coal combustion residuals, this does not

22 appear to be happening.357

1 By proposing Subtitle C legislation

2 under RCRA, you are making coal combustion

3 residuals a special waste when disposed of. You

4 are attaching a label to all co al combustion

5 residuals that are dangerous

-- that are

6 dangerous, toxic, hazardous, just plain bad

7 material. This labeling will result in a

8 short

- term and a long

- term degradation and

9 destruction of environmentally sound and safe

10 beneficial uses of coal combustion residuals.

11 Even now while legislation is being

12 drafted, I see the stigma of this labeling

13 occurring. The news media seems hard

- pressed to

14 say "fly ash" without saying "toxic" at the same

15 time. Governmental agencies are considering

16 regulations that would require labeling of

17 products that contain coal combustion residuals.

18 Where else do we see this kind of labeling other

19 than possibly consumer food products? I can offer

20 mountable examples of where this sti gma is

21 occurring and how it is impacting beneficial

- use

22 coal combustion residuals. But the most personal358

1 observation I hav e is my mother. After watching a

2 network TV program a few months ago, she came up

3 to me and said do you work in this toxic material?

4 And I had to say, yes, I've been doing it for 30

5 y ears; this is my business.

6 In closing, I want to restate that I'm a

7 supporter of establishing national disposal

8 regulations to protect human health and the safety

9 of the envi ronment. Subtitle C or D regulations

10 are essentially the same. Subtitle D approach

11 will provide faster implementation, allow for

12 continued regulatory programs at the state level,

13 and be less costly to implement and manage. I

14 support

-- I do not support Subtitle C legislation

15 under RCRA. Thank you.

16 MS. DEVLIN: Thank you. At this point,

17 we are going to take a very short break, and so we

18 should reconvene in about 10 minutes. Thank you.

19 (Recess)

20 MS. DEVLIN: Okay, at this point, we're

21 going to reconvene, and I'm going to ask is there

22 anyone who at this point wants to provide359

1 testimony to us whether you have preregistered or

2 have just walked in this afternoon?

3 Okay, hearing that, we are going to

4 officially adjourn for a dinner break then. And

5 our next scheduled speakers are at 6:00, so we

6 will adjour n until 6:00, and we're back here and

7 start hearing testimony at 6:00.

8 Thank you.

9 (Whereupon, at 5:07 p.m., an

10 afternoon recess was taken.)

11

12

13

14

15

16

17

18

19

20

21

22360

1 E V E N I N G S E S S I O N

2 (6:06 p.m.)

3 MR. DELLINGER: Good evening and thank

4 you for attending today's public hearing on the

5 Environmental Protection Agency's proposed rule

6 regarding the regulation of coal combustion

7 residuals that are disposed of in landfills or

8 surface impoundments. Before we begin I'd like to

9 thank you for taking time out of your busy

10 schedules to address our proposed rule and we look

11 forward to receiving your comments. This is the

12 first of seven public hearings that we'll be

13 conducting. The other hearings are in Denver,

14 Dallas, Charlotte, Chicago, Pittsburgh, and

15 Louisville.

16 My name is Bob Dellinger. I'm the

17 director of the M aterials Recovery and Waste

18 Management Division in EPA's Office of Resource

19 Conservation and Recovery within the Office of

20 Solid Waste and Emergency Response. I'll be

21 chairing this po rtion of today's public hearing.

22 With me on the panel are Laurel Celeste, Steve361

1 Hoffman, and Jesse Miller.

2 Now I' m going to cover the logistics for

3 the comment portion of today's public hearing.

4 Today's public hearing will work as follows.

5 Speakers, if you preregistered you were given a

6 15

- minute time slot when you are scheduled to give

7 your 3 minutes of testimony. To guarantee that

8 slot we've asked that people who've preregistered

9 would sign up 10 minutes before their 15

- minute

10 slot at the registration desk. It's probably not

11 going to be a big problem because we took extra

12 speakers earlier today so we'll how that works.

13 All speakers, those that preregistered and

14 walk

- ins, were given a number when you signed in

15 today and this is the order in which you will

16 speak, although that may not be the case if we

17 have gaps in who is here right now. I'll call

18 speakers to the table by number four at a time and

19 when your number is called, please move to the

20 microphone and state your name and your

21 affiliation.

22 Because there are many people who have362

1 signed up to provide testimony today and to be

2 fair to everyone, we've limited testimony in the

3 hearing to 3 minutes. We'll be using an electric

4 timekeeping system and we'll also hold up cards to

5 let you know when your time is getting low. We'll

6 flash a card at 1 minute and also one at 30

7 seconds and then one when your time is up.

8 When you've completed speaking, please

9 return to your seat at the table and remain there

10 until all speakers in your group have comple ted

11 their testimony. If you brought a written copy of

12 the comments that you're giving today, please

13 leave a copy in the box over here where the court

14 reporters are. And if you're onl y submitting

15 written comments today, please put those in the

16 box at the registration desk.

17 If you have additional comments after

18 today, please follow the instructions on the

19 yellow handout and submit the comments by November

20 19, 2010. Our goal is to ensure that everyone who

21 has come today to present testimony is given an

22 opportunity to provide comment and to the extent363

1 allowable by time constraints, and unless we have

2 a big mass of people moving in here in the next

3 few minute s, I think that's not going to be an

4 issue.

5 The hearing is scheduled to close at

6 9:00 p.m., although we extended to about 9:45 I

7 believe, so we'll be here until 9:45 unless a ll

8 the people that signed up up to that 9:45

9 timeframe have been allowed to offer their

10 testimony. At least a few of us will wait to make

11 sure that we get the testimony of anybody els e who

12 comes in, and that's pretty much it.

13 One thing, with cell phones just try to

14 keep them on vibrator, and if you have to take a

15 call, try to take it outside into the lobb y if

16 possible.

17 I'm going to start calling numbers four

18 at a time and we'll see how that goes. Numbers

19 110, 116, 119, 120? All right, we've got four

20 right now. Number 110?

21 MR. LAURIE: Good evening. My name is

22 Lucian Laurie. I'm a homeowner and resident in364

1 Oakland Park Subdivision in King George, Virginia.

2 The substance of my comments this evening will

3 just be personal comments on an issue that's been

4 ongoing for us in the community for about two

5 years, and actually longer than that but we've

6 been really concentrating on it for about two

7 years, and that is the overwhelming stench of a

8 landfill that's about a mile from our house.

9 This landfill is run by Waste Management

10 Corporation and we just recently found out that

11 they've been accepting coal ash as a trash stream

12 as they call it, and I'm not sure when that

13 started. I know they stopped in June because, lo

14 and behold, they were opening a methane

15 reclamation site and the testing for when they

16 started to open that up revealed that they had

17 toxic levels of a couple of different contaminates

18 none of which are really my bailiwick. I

19 understand that they're toxic at the levels that

20 they were found at and I know that our air qual ity

21 has been horrendous for the last

-- I've been

22 there for four years and it's been the entire four365

1 years that I've been t here.

2 The conversation started out with

3 e

- mails amongst the neighbors. We all complained

4 about the odor. Then it moved to talking to the

5 Waste Management folks and to our c ounty

6 officials. I must say that Waste Management has

7 been very responsive as far as answering your

8 questions and responding to our e

- mails, but the

9 situation has not changed in the l east. The

10 stench is still terrible on almost a daily basis.

11 There are ups and downs, but it's been very bad.

12 We are constantly assured by our county

13 officials that the water is tested and is okay,

14 but the fact is that it smells and tastes just

15 like the air does. I will say that I'm not

16 terribly concerned at this point about property

17 values because the ec onomy has taken care of that,

18 but at this point really what I'm concerned about

19 is my 12

- year

- old son who we're forced by

20 economic conditions to stay in this place. I

21 think the smart people have already gotten out. I

22 ask that this panel and the considerations that366

1 ensue from these hearings take into account the

2 concern that we as parents are feeling about this

3 environmental quality.

4 Thank you.

5 MR. DELLINGER: 116?

6 MR. CUNNINGHAM: Thank you. My name is

7 Bill Cunningham. I'm with the Unions for Jobs in

8 the Environment, or U.J. for short. U.J. member

9 unions represent more than 3.2 million workers in

10 electric power, transportation, coa l mining, and

11 construction, all who have a vital interest in the

12 way that EPA regulates coal combustion residuals.

13 Unions for Jobs in the Environment is

14 opposed to the regula tion of CCRs under Subtitle C

15 of RCRA. The nature of CCRs does not warrant

16 regulation as a hazardous waste and we believe

17 that such regulation would hinder the recycling

18 programs that greatly reduce the need for and the

19 costs of disposal. Either of the two proposals by

20 EPA would regulate for the first time CCRs under

21 RCRA instead of leaving regulation to state

22 aut horities. Under both proposals, EPA would367

1 establish dam safety requirements to address the

2 kind of environmental damage that occurred at

3 Kingston. Both proposals would require multilayer

4 liners for impoundments as well as landfills and

5 require ground water monitoring to detect

6 contamination.

7 Un der Subpart D of RCRA, facilities

8 would be subject to location standards and there

9 would be corrective action standards for releases

10 from the facility. Closure and post

- closure care

11 r equirements would be put forth to address the

12 stability of service impoundments.

13 We are pleased to see that EPA has

14 expressed its commitment to continued recycling of

15 CCRs. We believe however that regulation of CCRs

16 under the Hazardous Waste Subtitle C would

17 stigmatize the use of these materials in

18 construction products even if the materials are

19 termed sp ecial waste. There is little doubt that

20 the public would respond negatively if asked if

21 they would approve recycling materials under

22 hazardous waste. With uses of CCRs increasingly368

1 conscious of product liabilities, recycling is

2 highly likely to be set back by regulation under

3 Subtitle C. Flexibility and discretion by the

4 states is needed due to the many differences in

5 storage sites in each state. Maintaining

6 flexibility for state regulators can best be

7 served under Subtitle D. As EPA has noted, unde r

8 Subtitle D, regulations would go into effect much

9 more quickly than under Subtitle C.

10 The statement I am giving today is for

11 all U.J. Members, but some members including t he

12 mine workers and the IBW will be submitting their

13 views as well. I would like to call your

14 attention to the mine workers' letter which

15 requests that EPA work with Congressman Bouch er

16 and the majority of members of the Energy and

17 Commerce Committee that transmitted their views in

18 a July 29 letter of their desire for revisions of

19 Subtitle D regulation.

20 In summary, U.J. members are confident

21 that regulation under Subtitle D of RCRA would

22 protect public health and safety and that369

1 regulation under hazardous waste provisions would

2 damage the recycling program for CCRs while giving

3 no real measure of public benefit.

4 Thank you. I'd like to leave with you

5 the complete statement that we prepared for EPA.

6 MR. DELLINGER: That would be great.

7 119?

8 MR. BECK: Thank you. My name is

9 Michael Beck. I conduct sales and marketing

10 efforts for Synthetic Materials LLC, the largest

11 processor and marketer of flue gas desulfurization

12 gypsum in the United States. We're currently

13 processin g and marketing for beneficial reuse over

14 4 million tons of FGD gypsum each year.

15 Synthetic Materials is a small business

16 that will directly and negatively be impacted by a

17 S ubtitle C determination. Our primary customer

18 base is for our washed and dried FGD gypsum that

19 consists of wallboard and cement manufacturers.

20 In the wake of the current economic recession, our

21 customers are facing an extremely difficult

22 present and an even more challenging and unknown370

1 future. With construction demand at historically

2 low levels and the housing market struggling to

3 show signs of life, our customers are forced to

4 operate their plants at levels as low as 30

5 percent of their capacity. The market situation

6 has forced plant closures, layoffs and investment

7 stagnation.

8 The above climate alone has created a

9 very difficult way forward for SYNMAT's marketing

10 department, and with the potential for FGD gypsum

11 to be unfairly regulated as a hazardous waste

12 despite being labeled a special waste, the

13 potential to completely lose our customer base and

14 suppliers is very real. We have both customers as

15 well as suppliers refusing to move forward with

16 contractual and other commitments made to SYNMAT

17 not because of current market condit ions or any

18 perceived stigma of Subtitle C determination, but

19 because of the real liability concerns that come

20 with an absolutely unnecessary hazardous waste

21 classification for coal co mbustion byproducts.

22 For our wallboard customers especially,371

1 the compounding of the terrible housing market,

2 the Chinese wallboard problems, the still

3 remembered asbestos issue and the addition of

4 classifying a major raw material as a hazardous

5 waste creates a perfect storm that will severely

6 hur t market recovery and potential for the overall

7 health of the U.S. economy.

8 The appropriate response is the proposed

9 Subtitle D option. The catalyst to this

10 discussion was a failed coal ash retention pond

11 and not a hazardous waste. A proportional

12 response is necessary to maintain a stable market

13 for beneficial reuse and to significantly reduce

14 the risk o f such an accident again. That

15 proportional response is Subtitle D.

16 Thank you very much.

17 MR. DELLINGER: Thank you. Number 120?

18 MR. ROHRBACH: My name i s Jim Rohrbach.

19 I'm a licensed professional engineer in Delaware.

20 I have a B achelor of S cience and M aster of S cience

21 in civil engineering focusing on civil and

22 environmental aspect s.372

1 I want to thank you guys for the opportunity to

2 provide comments for this hearing.

3 I have 10 years' experience rec ycling

4 coal ash in a variety of applications, the

5 geotechnical and chemical properties of both flash

6 and bottom ash, along with their nonhazardous

7 nature make them ideally suited for m any different

8 reuse applications. Industry figures show about

9 60 million tons of coal ash was recycled in 2008.

10 Uses of coal ash as a structural fill in

11 construction application saves money and reduces

12 the need to mine virgin soil resources. The same

13 can be said for the use in concrete manufacturing

14 along with the millions of tons of avoided

15 greenhouse gas emissio ns annually resulting from

16 the replacement of cement with coal ash. In the

17 operation I manage in Delaware, the beneficial use

18 of coal ash with municipal sewage sludge saved

19 millions o f cubic yards of landfill volume over

20 the last 15 years while mitigating the need for

21 millions of cubic yards of virgin resources for

22 fill and landfill cover applications.373

1 These and many other uses save the

2 public money. They save virgin resources and

3 landfill volume and reduce greenhouse gas

4 em issions by many millions of tons annually.

5 Based on my experience in the industry, there is

6 no doubt that the stigma associated with

7 regulating coal ash under the Subtitle C approach

8 w ould effectively cripple the ability of this

9 entirely nonhazardous resource as defined by the

10 character of the material to be reused as it is

11 today.

12 A couple of examples. Co ncrete

13 manufacturers will be extremely reluctant to

14 handle a material that would be considered

15 hazardous if disposed but okay to use for, say,

16 residential areas or schools. We get que stions

17 already, do my workers need to be especially

18 trained? Do the products that use coal ash become

19 hazardous if and when they are ultimately

20 disposed? I think a bigger issue is th at the

21 power plants who produce the ash are going to be

22 very reluctant to allow the use of ash. Why take374

1 a chance on that liability? The hundreds of

2 millions of dollars of extra costs based on

3 disposal versus reuse will be passed on to you,

4 me, and everyone else who uses electricity in this

5 country.

6 With no apparent technical basis that I

7 can see to the Subtitle C hazardous approach, will

8 result in tens of millions of tons of coal ash to

9 be uselessly disposed of annually alo ng with the

10 other environmental problems associated with

11 disposal. I, therefore, urge that the states be

12 allowed to continue their regulation of coal ash

13 under Subtitle D, thereby all owing the

14 continuation of the important role of coal reuse

15 without the erroneous and needless designation as

16 a Subtitle C hazardous material.

17 Thank you.

18 MR. DELLINGER: Thank you. I'm going to

19 call four more numbers now, 121, 125, 126, 142,

20 143 and 147.

21 Let's go with 228, 229 and 230. I don't

22 have either 222 or 223. I was looking in the375

1 wrong column on here, but you'll have a 15

- minute

2 wait roughly if that's okay.

3 MS. ENDERLE: I want to make sure I'm

4 not jumping in front of 221.

5 MR. DELLINGER: No, you're okay.

6 MS. ENDERLE: My name is Emily Enderle.

7 I am a legislative representative at Earthjustice,

8 which is an environmental nonprofit law firm here

9 in D.C.

10 I want to thank the EPA first for

11 allowing the public to comment on this really

12 imp ortant rule. As you've noticed, this is of

13 high importance to a number of the large

14 environmental and public health groups in the

15 United States. I for example am here on behalf of

16 th e 220,000 plus members and supporters of

17 Earthjustice to let you know that this is

18 certainly one of our high

- priority rules.

19 You are right now in the midst of

20 looking at publ ic comments, looking at technical

21 data and considering two particular options on how

22 to deal with the disposal of coal ash. For us we376

1 would really appreciate and the public would

2 really appreciate the scientifically defensible

3 option which is Subtitle C under the Resource

4 Conservation and Recovery Act.

5 It's only under that particular subtitle

6 that we would be able to ensure that communities

7 are going to be protected from toxic coal ash.

8 We've seen time and time again that the states

,

9 when left to operate under the status quo

, that

10 there are damage cases throughout the country.

11 You have identified dozens of damages cases

12 yourselves. We have certainly worked on several

13 reports in the past identifying more damage

14 reports looking into using data that's available

15 at the state and local level. I think that's one

16 example and a lot of those are related to

17 leaching.

18 Then we have cases like the Kingston

19 spill. That's an example of catastrophic failure.

20 I am from a small town in rural Ohio. We are

21 certainly a coal state. We are actually sixth

, I

22 think

, in the country in terms of coal use and we377

1 generate 6.9 million tons per year. In Ohio we

2 have six of the high

- hazard dams, which means if

3 they were to fail one or more people would likely

4 die because of that failure. You know that there

5 are a lot of structural integrity issues and

6 you've collected the data. Personally I'm scared

7 for my family, for citizens of Ohio as well as

8 citizens across the country and there are hundreds

9 of other ponds that haven't even be en quantified

10 in terms of structural integrity. So the

11 catastrophic failure, as well as leachability are

12 of high concern.

13 Your own data shows 2,000 times the

14 acceptable risk of arsenic is a possibility in

15 terms of the lea ch test. You have the science. I

16 mainly wanted to let you know that you have the

17 public's support and you have the scientific

18 support. We hope that the rule that you decide to

19 promulgate is ultimately that one that you put

20 forth to OMB and that the politically more

21 attractive yet the less

- protective rule is the one

22 that's left behind. Thank you for the opportunity378

1 to comment.

2 MR. DELLINGER: Number 228?

3 MR. BENNETT: Good evening. My name is

4 Colin Bennett and I'm here to only represent

5 myself, my daughter and all of the other concerned

6 citizens who can't be here to offer comment in

7 person.

8 The way I look at it, there are two

9 options here, more or less the right way and the

10 wrong way and I think that most folks in this room

,

11 if they dig down deep

, know what the right way is

12 to pursue Subtitle C.

13 Your own press release lists all the

14 contaminates found in coal ash, arsenic, cadmium,

15 mercury, which are neurotoxins in the case of

16 mercury that have catastrophic health effects when

17 they're introduced into the ecosystem and then

,

18 further more introduced into the public health

19 system through whatever means, whether it be

20 through bio accumulation through fish and pregnant

21 mothers, young children, or anybody eating fish

22 contaminated with mercury, to any other ways that379

1 it can be introduced.

2 Essentially like I said, there is what I

3 would feel is the industry backed way and in my

4 experience

, limited as it may be being somewhat

5 young, what industry backs is generally not what

6 the public backs because industry has profit as a

7 motive whereas the public has their life and

8 safety as a mo tive. I definitely urge and implore

9 you to take the more

- stringent standard, adopt

10 Subtitle C and to do the right thing for our

11 country, our future, our children, my daughter,

12 and eve rybody else out there who isn't just

13 looking for a way to increase profits through

14 less

- stringent standards.

15 Thank you.

16 MR. DELLINGER: Thank you. 229?

17 MS. MILES: My name is Emily Miles and I

18 am a student at George Mason University. I came

19 to this hearing today not as part of a corporation

20 or organization, but as a concerned public

21 citizen.

22 Every year thousands of people die from380

1 illnesses that stem from dirty coal. Fine

2 part icles get into the respiratory systems of

3 children and innocent civilians. Contaminant s from

4 coal plants can also get into our environment,

5 something that we can not live apart from. It

6 would be ridiculous for the EPA to put coal

7 profits over the lives of thousands as well as the

8 health of the surrounding environment. After all,

9 the EPA stands for the Environmental Prote ction

10 Agency and that's just what it is here to do,

11 protect our environment and not to make

12 compromises with corrupt coal companies.

13 I cannot describe here how much it makes

14 me sad that continually corporations put profits

15 over people. Some of us here have had friends and

16 families who have died from cancer and other

17 illnesses because environmental compani es are

18 willing to go to any end to get more profits. As a

19 citizen I am here today to tell the EPA to do its

20 job and protect people by protecting the

21 environment. Do what is the right thing to do.

22 Coal is hazardous and so are all its byproducts.381

1 It needs to be treated as such. Our communities

2 need to be protected from this toxic ash by

3 implementing strict guidelines that can be

4 enforced under Subtitle C.

5 MR. DELLINGER: Thank you. Number 230?

6 MR. VAN KUDRO: My na me is Jason Van

7 Kudro and I'm 21 years old and a senior at George

8 Mason University. I am an environmental science

9 major and I understand the importance of

10 protecting our air and water . I don't work for a

11 major corporation or an organization. I don't

12 have a hidden agenda. I'm just here for only one

13 reason and that's to protect my future and the

14 future of future g enerations.

15 Coal ash is a hazardous waste and I urge

16 the EPA to regulate it as a toxic substance under

17 Subtitle C. Ever since I've been a kid I've

18 suffered from chronic head aches. My brother has

19 really bad asthma and my parents would take him to

20 the hospital and not know if he'd make it through

21 the night. A dear friend of mine who is only 29

22 years old w as diagnosed with breast cancer this382

1 year. I can't prove that these were due to coal

2 ash, but the evidence that coal ash has negative

3 effects on humans is known. The EPA has that

4 evidence and they a re the ones putting forth that

5 evidence.

6 I urge the EPA to do the right thing and

7 regulate coal ash under Subtitle C. Our country

8 needs to make a transition away from this dirty

9 source of energy. This transition is

, as you know

,

10 is what our country and our President is calling

11 for and we need to start stepping up regulations

12 on coal ash, start protecting our health and

13 protect our communities.

14 Thank you.

15 MR. DELLINGER: 224, 225, and 222, and

16 223. I don't have the complete set. Let's 221,

17 223, 224, and 225.

18 MS. BLAKE: Hello, my name is Jessie

19 Thomas Blake and I am a concerned citizen from

20 Fairfax, Virginia.

21 I'm glad that EPA is proposing rules for

22 the safe disposal and management of coal ash. I383

1 sup port the creation of a comprehensive program of

2 federally enforceable requirements for waste

3 management and disposal as proposed under Subtitle

4 C. I also support the recycling and beneficial

5 use of coal ash as long as it does not compromise

6 human health or the environment. This is

7 important because states do not usually require

8 offsite monitoring of drinking water supplies yet

9 data consistently shows contamination offsite.

10 Federally enforceable regulations are

11 necessary to stop the threat to public health and

12 damage to the environment that poor managem ent of

13 coal ash ponds and landfills has caused in the

14 past. No one should have to drink water

15 contaminated by coal ash. Clean water is a basic

16 right. I hope these regulations bring us closer

17 to that reality. Thank you for the opportunity to

18 provide comment.

19 MR. DELLINGER: Thank you. Number 222?

20 MR. BARKER: My name is Jonathan Barker.

21 I'm a licensed professional engineer and I've

22 worked in the utility industry for 30 years. In384

1 addition to my power plant operat ional experience

2 I've been involved with the beneficial use of coal

3 ash for approximately 20 of those 30 years.

4 I very much appreciate the fact that you

5 guys are having these sessions and letting people

6 speak their minds, and that's very important.

7 That being said, I have a couple of comments and

8 I'd better say them fast.

9 I'm deeply concerned wit h the

10 implications associated with the eventual ruling

11 and also the delay associated with this process.

12 There appears, as far as I'm concerned as an

13 engineer, to be no technical justif ication to

14 separate coal ash as a special waste that is

15 beneficially utilized from coal ash that is

16 deposed of. Coal ash is coal ash. It's either

17 one or the other. Again, as an engi neer this

18 makes no technical sense to me.

19 The EPA suggests that by segregating

20 these applications, byproduct utilization will not

21 be impacted. Approximately 43 percent of th e coal

22 ash generated is utilized in applications such as385

1 cement, road construction, cement replacement in

2 kilns, cement rep lacement in concrete road

3 construction, building schools, building houses,

4 building everything. To say that this is not

5 going to impact that construction industry, as far

6 as I'm conce rned, is a very false assumption and

7 seems to contradict the government's stimulus

8 package approach of getting our country out of

9 this recession.

10 Again, I am representing a c ompany but

11 we believe strongly in managing these materials

12 appropriately. We have no problem with strict

13 regulations as far as disposal is concerned. I

14 completely disagree with going to Subtitle C

15 versus Subtitle D because there is no technical

16 merit to doing that. Otherwise, it's either

17 hazardous or it's not.

18 It must be noted that one of the other

19 things that you haven't talked about are some of

20 the other industries. There was a gentleman here

21 earlier who talked about the use of gypsum and I

22 can personally testify that I have many clients386

1 that were utilizing gypsum as an agricultural

2 amendment for crops and their utilities have

3 decided not to put those materials on the ground

4 anymore so that these farmers now have to buy

5 chemicals and put other things on the ground as

6 opposed to using gypsum products that come from

7 power plants.

8 Real quickly, in summary it's my opinion

9 that the prospect of segregating the

10 classification of coal ash based upon the end use

11 is entirely not supported by technical merit. In

12 addition, the economic implications are far beyond

13 those anticipated by the EPA when you consider the

14 cost to our country's infrastructure and the

15 agricultural end users.

1 6 Thank you very much.

17 MR. DELLINGER: Thank you. 223?

18 MR. CARRER: My name is Gary Carrer.

19 I'm from Oakland Park which is King George County.

20 I have my neighbor Lou Chin with me. I represent

21 myself, my family, my loved ones and my neighbors.

22 I've heard a lot of testimony here and3 87

1 this has been cram course for me over the last 4

2 or 5 months of how these things work as related to

3 coal ash disposal. I want to offer testimony and

4 perhaps even offer the EPA a ca se study in how

5 much of a failure it's been in King George County.

6 They started accepting this product a year X ago,

7 I don't know that information. They stopped

8 taking it in June beca use they had very poor and

9 ineffectual recapture of gas and it was polluting

10 our neighborhood and making everything smell like

11 sulfur, rotten eggs, and so on, and it's reached

12 the poin t now where it almost seems unlivable

13 there.

14 Waste Management manages that facility

15 and by their own stopping of the waste stream they

16 admit that they can't manage it. I've heard

17 testimony here about the impacts of industry and

18 possibly the positive uses of all of these

19 products and I applaud that. I'm not looking for

20 heavy

- handed regulations but the DEQ has been

21 involved, the Department of Environmental Quality

22 in Virginia has been involved in a loop on388

1 pressuring Waste Man agement now for probably 9

2 months and the effect has been basically zero.

3 They've stopped taking the product and I don't

4 know what the reason or pressure was to cause

5 that.

6 But my belief is that the at the local

7 level, the environmental DEQ and the various state

8 levels seem to have such varying rules and levels

9 that perhaps it's time that we standardized t his

10 and make it enforceable because our property

11 values are destroyed not only from the downturn in

12 general but nobody in our area would buy anymore.

13 You cannot sell a house in my area , period. We've

14 got negative press and at this point the cat is

15 out of the bag, so now I'm looking to see if the

16 EPA could standardize it, make it sensible, do the

17 right thing as we'v e heard here mentioned tonight

18 so we can breathe and live and I don't have to

19 worry about my seven

- and nine

- year

- old

20 grandchildren from developing some hideous disease

21 that could have been possible as a result of these

22 pollutants.389

1 Thank you, folks. I appreciate the

2 time.

3 MR. DELLINGER: Thanks. 224?

4 MR. RISCH: My name is John Risch and

5 I'm with the United Transportation Union

6 representing operating railroad workers across

7 America. We have about 100,000 members many of

8 which operate coal trails across the country.

9 We'd urge the EPA to be cautious in

10 their dealing with coal and labeling coal ash as a

11 hazard ous waste. We are members of Unions for

12 Jobs in the Environment and we fully support their

13 testimony and the written comments that they

14 submitted in support of Part D with modifications.

15 Our country depends on coal. About 57

16 percent of the nation's energy is derived from the

17 burning of coal. Our nation's railroads in

18 particular depend on coal. A full 25 percent of

19 all the freight in this country on the freight

20 railroads is coal traffic and 20 percent of the

21 freight railroad jobs are coal related.

22 I myself grew up in Mandan, North Dakota390

1 next to a railroad line that would be abandoned

2 today if it were not for coal. In the late 1970s

3 the Potter River Basin opene d up. The coal began

4 to flow through North Dakota on this line that was

5 on its way to abandonment and was rebuilt and all

6 kinds of shippers other than coal shippers

7 benefited from it: Our farmers, our egg

8 producers. And manufacturing industries along

9 these lines were given the benefit of these great

10 railroad lines that coal money

-- the coal freight

11 rates revenue s were used to rebuild. My small

12 town of Mandan, North Dakota with a population of

13 17,000 people now has 400 good

- paying railroad

14 jobs today because of coal.

15 In closing I'd like to say that we'd

16 urge the EPA to be cautious. We don't want to do

17 any more damage to the economy than absolutely

18 necessary. Coal ash should certainly be handled

19 in a responsible way, but we're very concerned

20 about being too heavy

- handed and causing too much

21 expense incurred upon the industry to make coal

22 not a competitive fuel source.391

1 Thank you so much for the opportunity.

2 MR. DELLINGER: Is there anyone else in

3 the room who has logged in?

4 225 and 22 6. Thanks.

5 MR. BURTON: My name is Bruce Burton. I

6 am an international representative with the

7 International Brotherhood of Electrical Workers

8 here in the Washington, D.C. area. I'm here

9 tonight on behalf of IBEW president Ed Hill and

10 the approximately 725,000 members of the IBEW.

11 The nature of coal ash does not warrant

12 its regulation in the s ame section of law as

13 hazardous waste. Such regulation would destroy

14 the very successful recycle programs that greatly

15 reduce the need for and cost of disposal. CCRs

16 have been used f or decades to enhance concrete and

17 for wallboard construction. CCRs contributed to

18 the construction of the Hoover Dam and the San

19 Francisco/Oakland Bay Bridge. More recently they

20 wer e used in the construction of the new I

- 35

21 bridge in Minneapolis, Minnesota. Concrete made

22 with fly ash extends the life of construction392

1 projects by decades, minimizing the environmental

2 impacts of rebuilding.

3 The approximately 45 percent of CCRs

4 that are currently recycled avoid about 117 tons

5 of greenhouse gas emissions annually, and every

6 ton of fly ash used in place of Portland Cement

7 prevents about a ton of C O 2 from entering the

8 atmosphere. Additionally, the equivalent of 55

9 gallons of oil is saved because that is what it

10 takes to produce a ton of cement. Furthermore,

11 fly ash requires less water than Portland cement.

12 Regulation of CCRs under Subtitle C,

13 that is hazardous waste, will stigmatize the use

14 of fly ash in construction products even if the

15 material is termed special waste. There would be

16 significant reluctance to allow CCRs in

17 construction materials if it is regulated as a

18 hazardous waste. Any lawsuit against recycling

19 would be substantially assisted by regulating CCRs

20 under Subtitle C. With the users of CCRs

21 increasingly conscious of product liability,

22 placing coal ash under Subtitle C will greatly set393

1 back

, if not destroy

, recycling efforts. Even if it

2 classifies fly ash as nonhazardous, EPA would

3 still establish national criteria to ensure the

4 safe disposal of CCRs and the IBEW is fully

5 supportive of t hat part of the proposal.

6 Facilities handling coal ash would be subject to

7 location standards and composite liner

8 requirements. Existing ash ponds without liners

9 would have to retrofi t within five years or close

10 and ground water would be monitored for

11 contaminants. Finally, post

- closure care

12 requirements would be issued to address the

13 long

- term stability of ash po nds.

14 With that, thank you very much for

15 allowing me to speak this evening. We appreciate

16 it.

17 MR. DELLINGER: Thank you. Are you 226?

18 I didn't lo se count then.

19 DR. PRADOS: Good afternoon. My name is

20 Dr. Ana Prados. I am a research assistant

21 professor at the University of Maryland Baltimore

22 County here in the D.C. Area. I am here394

1 representing myself. I am a chemist by

2 profession.

3 Thank you for the opportunity to comment

4 on this important regulation. I applaud the EPA

5 for the first time ever considering enforceable

6 federal regulation of toxic coal combustion

7 residuals. I support the EPA proposal for

8 regulation under Subtitle C with some important

9 additions. Regulation under Subtitle D is very

10 weak. It's essentially voluntary. It does not

11 seem like it would do much at all to protec t

12 families and our drinking water supplies.

13 Here in our local area we've already

14 heard of one case in King County which I was going

15 to talk about but we've already heard that

.

16 That's something I am very concerned about. We do

17 know where that coal ash comes from. It comes

18 from a coal plant owned by the Mirant Corporation

19 just a few miles from here actuall y in the city of

20 Alexandria. It has caused its own problems here

21 with air quality and now we're seeing the impacts

22 on the other end. This is very unfortunate.395

1 I also am aware of another case here in

2 the D.C. Area which also happens to be due to the

3 same Mirant Corporation which has been sued by the

4 Maryland Department of the Environment. This is

5 happening in P.G. County which is where I

6 happen to work. In this case there have been

7 violations of the Clean Water Act, there have been

8 violations of the N PD E S discharge permit at the

9 Brandywine landfill which is in P.G. County. It

10 has a total of three unlined pits, several unlined

11 receiving ponds, something that wo uld not have

12 happened if this landfill had been regulated under

13 Subtitle C. It receives a total of 5

- 1/2 million

14 cubic yards. You probably have heard about this

15 earlier today. It ha s unfortunately been leaking

16 toxic chemicals into the groundwater of Mataponi

17 Creek which flows into a sanctuary. So this is a

18 hazard not just to drinking water and not just to

19 people but to wildlife.

20 These are not the only cases. These are

21 the ones I happen to know about in my area. Since

22 the publication of EPA's final regulatory396

1 determination of waste from the combustion of

2 fossil fuels in 2000, many other cases have come

3 to light, many of these based on EPA's own

4 analysi s. You might want to take note of a recent

5 study conducted by the Environmental Integrity

6 Project, Earthjustice, and the Sierra Club which

7 reports a threefold increase in the number of

8 contaminated sites since 2000. Clearly what we

9 have in place is just not working. I think the

10 responsible and the ethical thing to do is

11 regulation under Subtitle C.

12 Fina lly, I was a little disappointed to

13 see no consideration of what would happen to all

14 the so

- called reclaimed underground mines. I

15 believe that these should be subject to the same

16 regu lations, that citizens should be protected

17 equally across the U.S.

18 Thank you very much for the opportunity

19 to comment.

20 MR. DELLINGER: 134?

21 MS. DODSON: Good evening. My name is

22 Kara Dodson. I'm a student and campus organizer397

1 at Virginia Tech in Blacksburg, Virginia. I full y

2 support the EPA's regulation of coal ash waste

3 under Subtitle C of the RCRA. I speak on behalf

4 of the Virginia Tech Beyond Coal Campaign. The

5 coal ash at the Virginia Tech co

- gener ation plant

6 is causing health problems for students in Thomas

7 Hall and town residents living near the plant. A

8 survey conducted by a student Chrissy Barton in

9 April 2010 revealed that coal particulates and

10 coal ash had collected on 72 percent of student

11 respondent windowsills, fans and counters. Many

12 students have reported headaches, heavy coughing

13 and sinus issue s as a result of the dust settling

14 in the dormitory. Eighty

- five percent of students

15 who took the survey believe students living beside

16 the coal plant face greater health risks than

17 s tudents living on other parts of campus.

18 In an extreme case, one female student

19 contacted tonsillitis and had her tonsils removed

20 after a failed regimen of antibiotics. Her campus

21 physician concluded that the cause of her health

22 issues was the coal ash collecting in her room.398

1 Persistent headaches forced her to mo ve to another

2 dormitory, and upon moving all of her previous

3 health issues stopped.

4 Virginia Tech has refused to properly

5 control the on

- campus coal ash as well as provide

6 air filtration systems for affected students

7 living in Thomas Hall. The current method of

8 controlling air pollution is wetting down the ash.

9 This is ineffective and in no way protecting

10 students from heavy metal and particulate

11 contamination. Subtitle C is the only viable

12 option for properly disposing of coal ash waste.

13 These stringent regulations under federal

14 enforcement are needed to protect Virginia Tech

15 students' health.

16 To quote a student adversely affected by

17 the coal ash pollution, If the technicians and

18 worker s at the coal plant have to wear respiratory

19 masks, then shouldn't the students also be wearing

20 protection if they're breathing in the same dust?

21 Concerning water contamination, my

22 research with Appalachian Voices for the In Harm's399

1 Way Coal Ash Report released on August 26 has

2 proven that dangerous levels of heavy metals and

3 coal combustion wastes are entering groundwater

4 systems and nearby public waterways. Frankly, our

5 drinking water is at stake

, and if our public

6 waterways are compromised u nder Subtitle D then

7 the EPA has failed citizens and communities that

8 it has been charged to protect. Only the special

9 waste designation under Subtitle C can resolve

10 these human healt h and environmental issues on a

11 national scale. If we begin disposing of coal ash

12 as truly hazardous substance, we will ensure

13 cleaner water, air, and land for future

14 generations.

15 Thank you.

16 MR. DELLINGER: Number 130?

17 MR. WILLCOX: Good evening. My name is

18 Nathan Willcox and I am the Federal Global Warming

19 Program D irector for Environment America.

20 Environment America is a federation of state

- based

21 citizen

- funded environmental advocacy

22 organizations working to protect our air, water,400

1 and open spaces. I would also mention that prior

2 to assuming my current position in Environment

3 America's Washington, D.C., office, I worked for

4 eight years for our Pennsylvania affiliate, Penn

5 Environment. And Pennsylvania is certainly a

6 state that has had to deal with the dangers posed

7 by coal ash for decades. I would also mention

8 that I will be dropping off testimony from our

9 Maryland affiliate, Environment Maryland. They

10 have done extensive work on the issue of coal ash

11 over the years and I'll be leaving that testimony

12 as well.

13 Coal combustion waste or coal ash is a

14 dangerous toxic material and I'm here today on

15 behalf of Environment America and our state

16 affili ates around the country to urge the

17 Environmental Protection Agency to draft

18 regulations for coal ash that are federally

19 enforceable, that identify coal ash as a special

20 waste under Su btitle C of the Resource

21 Conservation and Recovery Act, that strictly

22 regulates and monitors coal ash reuse and that401

1 phases out the most dangerous methods of coal ash

2 storage while requiring dry disposal and monitored

3 and lined ponds.

4 We base this request on a long track

5 record of scientific stud ies linking health

6 problems such as cancer and birth defects with the

7 toxic substances that can leach from coal ash as

8 well as a history of coal ash disasters that prove

9 the inadequacy of the status quo. For example, in

10 2000, the town of Pines, Indiana, was declared a

11 S uperfund site as a result of contamination coming

12 from a northern Indiana public service company,

13 Coal Ash Landfill. The company and the landfill

14 operator were required to provide alternative

15 drinking water sources and will likely be required

16 to pay for more cleanup in the future.

17 In 2006, studies found that coal ash

18 stored in sand and gravel mines in Anne Arundel

19 County, Maryland, had contaminated nearby

20 groundwater with sulfate, manganese, nickel,

21 cadmium, and other metals. To date

, the company

22 responsible, Constellation Energy, has paid $45402

1 million in legal settlements and will likel y pay

2 millions more to clean up drinking water and in

3 compensation to property owners.

4 And probably most infamously, in 2008, a

5 dam broke at a coal ash pond at the Tennessee

6 Valley Authority in Kingston, Tennessee, and

7 covered more than 300 acres in eastern Tennessee

8 with toxic coal ash sludge. The total cleanup

9 from that disaster will likely cost over $1 .2

10 billion.

11 Despite what we know about coal ash, its

12 storage, and the contamination that has occurred,

13 there is still much that we don't know. Some

14 states provide no oversight of coal ash storage

15 and don't require regular monitoring. Around the

16 country there are more than 1,300 coal ash dumps

17 full of highly toxic materials that are

18 esse ntially ticking time bombs. That the EPA

19 would not provide baseline regulations for

20 permitting, storing, and monitoring these dumps is

21 unconscionable. On behalf of Environment America,

22 our state affiliates across the country, and our403

1 citizen members

, I urge you to draft enforceable

2 regulations under Subtitle C today.

3 Thank you.

4 MR. DELLINGER: Number 227?

5 MS. HOFFMAN: Good afternoon. I'm Cindy

6 Hoffman. I am a health care executive and have

7 been in heal th care for 30 years. I am a Fellow

8 of the American College of Medical Practice

9 Executives and a former research writer for the

10 University of Texas Health Science Center at San

11 Antoni o.

12 I recently moved her e from south Texas

13 and when I was in south Texas I became very, very

14 interested in the efforts to prevent another coal

15 fired plant from being built, an d as I was

16 involved in this I visited with some of the local

17 people who live around the coal fired plant, and

18 if you want to see a group of walking wounded, go

19 look at those people. I have never in my life

20 seen anything so bizarre. There are families with

21 two instances of very rare cancer, a 40

- year

- old

22 man with his jawbone removed because of bone404

1 cancer and he walked in dragging his leg because

2 he had had a stroke. It is unbelievable what

3 those people go through. So I just want everyone

4 to really know and I want to call on our

5 government to really put out what the real facts

6 are. Without the facts we can't have a true

7 democratic process. Without the facts people

8 can't speak intelligently. So we have to know

9 what the true facts are about all of this.

10 I heard some addressing some of the

11 economic issues of coal jobs. We also

, in a

12 cost

- benefit analysis of how valuable coal may be,

13 I think we have to balance that against the

14 cost of all the health care issues that it may

15 cause. To get a true economic analysis, a true

16 understanding of what really we're looking at, I

17 think those two things have to happen.

18 Thank you very much.

19 MR. DELLINGER: Does anybody have number

20 22 8, 229, or 230? Mine jumps from 227 to 231.

21 231, 232, and 233? You all can move up

22 to the front now and then step up to the405

1 microphone.

2 MR. BROWN: Good evening. My name is

3 Bob Brown. I'm representing myself, my family and

4 my friends.

5 I support the Subtitle C proposal for a

6 tougher standard such as posting the content of

7 coal ash. I also support the prevention of new

8 coal plants being built, therefore reducing future

9 coal ash issues. Thank you.

10 MS. SORFF: My name is Jennifer Sorff.

11 I'm a private citizen but I'm also here for

12 someone named Richard H. from Locus Grove,

13 Virginia, and I have a quote from him. He says, I

14 can't go into details because of confidentiality,

15 but as a retired EPA senior scientist, I've

16 written opinions in legal cases demonstrating the

17 hazards of coal ash. Metals included arsen ic,

18 lead, and aluminum. These opinions factored into

19 the out

- of

- court settlements in favor of the

20 plaintiff.

21 Now I'd like to speak for myself. I

22 know thes e are hard economic times which cause406

1 government agencies to hesitate to regulate

2 industry for fear of hurting our recovery and as a

3 private business owner we all want to see a

4 recovery sooner than later. However, lack of

5 regulation can be much more harmful given the

6 potential for disasters that can affect our

7 country's health and prosperity.

8 The most recent example, of course, is

9 the BP oil spill in the Gulf where the government

10 has been found somewhat responsible due to

11 und er

- regulation. I urge the EPA to take the long

12 view, the responsible act, and enact the Subtitle

13 C option. Let's make sure the next big crisis

14 doesn't involve large areas of groundwater found

15 contaminated with arsenic and lead and with the

16 public blaming EPA for lack of supervision.

17 MR. DELLINGER: Let's do 234. Is 232

18 here?

19 MR. MCDONALD: My name is Norris

20 McDonald and I represent the Center for

21 Environment Commerce and Energy, and I just gave

22 you a chart of our recommendation.407

1 The Center recommends a hybrid of the

2 two proposed rules as the final rule. Coal

3 combustion residuals should be ruled as hazardous

4 if it is not directed to b eneficial reuse. The

5 Center is taking the best from both proposals and

6 combining them into a rule that will both

7 stimulate beneficial reuse while policing

8 indiscriminate warehousing o f such waste that can

9 then pose a risk to surrounding communities. The

10 Center recommends that beneficial reuse should

11 include utilizing coal ash as a substitute for

12 Portland Cement in the production of concrete.

13 Beneficial reuse should exclude the use of CCR in

14 residences. Our proposal should also eliminate

15 the shipment of residuals to landfills in

16 vulnerable comm unities. I'll go through the

17 comparison now, the fusion of the two other

18 proposals.

19 The Center combines the two proposals by

20 making the effective date one year after the fin al

21 rule is promulgated for most provisions requiring

22 state and local enforcement; the corrective action408

1 being self

- impleme ntation combined with

2 monitoring by states and the EPA; no requirement

3 for financial assurance or permit issuance;

4 requirements for storage including containers,

5 tanks and containment buildings pending reuse;

6 reinforced impoundments receiving CCRs for surface

7 impoundments built before the rule is finalized;

8 phase out new surface impoundments and install

9 composite li ners for newly hazardous CCR for

10 surface impoundments built after the rule is

11 finalized; no liner requirements but require

12 groundwater monitoring for landfills built before

13 the rule is finalized; liner requirements and

14 groundwater monitoring for landfills built after

15 the rule is finalized; and requirements for

16 closure and post

- closure care monitored by states

17 and EP A.

18 Thank you for listening to our comments

19 today.

20 MR. DELLINGER: Thank you. Is there

21 anyone else here who has not spoken who wants to

22 speak?409

1 MS. HOERATH: My name is Margaret

2 Hoerath. I'm with the Sierra Student Coalition

3 which is part of the Sierra Club, and I'd like to

4 read my statement. The status of coal ash

5 regulation is a patchwork and unreliable system

6 which varies from state to state. This system does not

7 adequately handle coa l ash waste and often results

8 in coal ash ponds that leak toxins. Subtitle C

9 will change this, protecting public health from

10 these dangerous toxins such as mercury, lead, and

11 arsenic.

12 Federally enforceable standards upheld

13 by the EPA are what we need. Citizen lawsuits

14 which are long, drawn out and hard for affected

15 communities to afford is the only mode of

16 enforcement under the weaker Subtitle D.

17 Please support Subtitle C which will

18 phase out coal ash ponds and will effectively

19 protect individuals' and communities' health an d

20 well

- being.

21 MR. DELLINGER: Thank you. Is there

22 anyone else who wants to speak at this time?410

1 We'll take a 10

- minute break and then

2 see what happens with new people coming in.

3 (Recess)

4 MR. DELLINGER: I hope I got this right.

5 Is number 154 he re? Thanks. Next would be 236,

6 so you can go to the microphone right now.

7 MR. STEVENS: Good evening. My name is

8 Tim Stevens and I'm here to express my views

9 regarding EPA 's proposed regulation regarding

10 disposal of coal ash.

11 I am a member of the City Council

12 appointed Environmental Services Council of the

13 City of Falls Church where I live, an d I'm also

14 Assistant Treasurer of the Virginia State Chapter

15 of the Sierra Club, although I speak here as an

16 interested citizen.

17 I'm concerned about how the 2

- 1/2

18 million tons of coal ash in Virginia is treated

19 today, namely, similar to municipal solid waste,

20 and would like to see the EPA become more

21 proactive in its oversight role with respect to

22 all phases of coal ash including its generation,411

1 disposal including storage, and transport.

2 Requiring producers of coal ash to obta in permits

3 according to federally mandated and enforceable

4 procedures is necessary to minimize the risk to

5 the public that coal ash will harm our drinking

6 water, our rivers, our wildli fe and our

7 communities. This risk arises from the fact that

8 coal ash contains numerous toxic substances such

9 as arsenic, lead, selenium, mercury, and a number

10 of others.

11 Of the two options proposed by the EPA,

12 I prefer Subtitle C of the Resource and

13 Conservation Recovery Act. This option gives the

14 EPA enforcement and oversight capabilities over

15 utilities commensurate with the risk that coal ash

16 represents while not preventing continued

17 exploration of ways for the industry to examine

18 beneficial uses of coal ash. I concur with the

19 proposal to phase out waste ponds and the

20 requirement of operators to demonstrate financial

21 assurances to ensure effective cleanup in the case

22 of contamination.412

1 To those who would say that adoption of

2 Subtitle C will drive up the cost of electricity

3 produced from coal, I would observe that the costs

4 of safely handling coal ash should be included in

5 the price of production. Otherwise, the health

6 risks of improperly handled coal ash will continue

7 to be an externality paid for by al l the rest of

8 us.

9 I thank the panel for the opportunity to

10 present my views.

11 MR. DELLINGER: Thank you. 236?

12 MR. BUCHANAN: Good evenin g. My name is

13 John Buchanan. I am here representing myself and

14 my family. My wife and I are pretty average folks

15 here in Arlington. We had a life

- changing event

16 about two years ago with the birth of our child

17 and people said that would really change your

18 life, your views, your outlook on things. My

19 being here is evidence of that because I never in

20 a million yea rs imag in ed me talking here about coal

21 ash. But I must say that when learning more about

22 and understanding more about this event, I find it413

1 totally unfathomable that we would not pursue the

2 strictest regulations possible against a known

3 environmental hazard and toxin. Any arguments

4 against tougher regulation on behalf of costs

, I

5 think

, are crazy because common sense tells us if

6 we don't deal with this issue now, we're just

7 kicking the can down the generations to our

8 children who will pay for this in i ncreased public

9 health costs and increasing environmental

10 remediation and cleanup, and more devastatingly in

11 terms of increased diseases and cancer.

12 So I would want to applau d the EPA for

13 having this process, but to urge you to take

14 the strongest possible stance, pursue Subtitle C

15 and go beyond that if necessary. I think in a

16 country like the U.S.

, wh ere we have enormous

17 opportunities in front of us to pursue the highest

18 quality of life for our current and future

19 generations

, I think that's common sense that we

20 should all pursue.

21 Thank you.

22 MR. DELLINGER: Number 127?414

1 MR. LEVY: Good evening. I'm Dave Levy

2 and I live in Alexandria, Virginia. Several of

3 you know I used to work with you guys over at EPA.

4 I'm here tonight not to give some

5 technical comments on the rule but to point out

6 that we're back here again, and by again I mean

7 the agency proposed in the year 2000 in January to

8 declare that coal ash was recognized as hazardous

9 waste and should be managed that way. It went to

10 OMB. The coal and electric industries went and

11 talked to OMB. In March 2000 EPA came back and

12 proposed that it be called nonhazardous waste and

13 managed under a less stringen t program.

14 So we're back here again today. I'd

15 encourage Administrator Jackson and Carol Browner

16 who is now in the White House working on climate

17 change and other issues to go with the Subtitle C

18 determination again. Ms. Browner had the

19 opportunity before but I suspect the White House

20 wasn't too happy with the industry's comments so

21 they proposed somethi ng else to the EPA.

22 The difference is not between the C415

1 program, and sometimes we call it the C minus

2 program whe n it's a little bit less stringent in

3 total hazardous waste management such as

4 beneficial uses, and it's not the difference

5 between a D plus program which is the municipal

6 management p rogram with a little bit more

7 stringent requirements. It's the difference

8 between the Grade A program and the Grade F

9 program, and I think we're destined for failure

10 again

, maybe not quite as often, but we're destined

11 for failure again if we adopt the D program. It

12 has to be the C program so that it's incorporated

13 as pointed out before. It's not an external cost

14 to electric production and electricity production,

15 but that's what economists like to call it. I

16 call it an indirect cost, but really it's a very

17 direct cost.

18 Talk to the pe ople in Tennessee. Talk

19 to the people who had to pay the rates for the

20 cleanup of what happened in Tennessee. So I think

21 it needs to be incorporated into the cost of

22 electrical produ ction because it needs to be a416

1 direct cost to the consumer meaning me and you and

2 everybody else who uses electricity that comes

3 from coal

- fired generation. We need to be

4 responsible for that and it also puts it on an

5 economic footing where other competing electrical

6 generation technologies

, especially newer ones that

7 are more green can complete.

8 Thank you.

9 MR. DELLINGER: Is there anyone else who

10 has not spoken who wants to speak?

11 You start because yours is 160, and

12 yours is 152. You can go first.

13 MR. WHITLEY: Thank you for the

14 opportunity to speak. My title is "The Great Harm

15 of Coal Ash" and my testimony is on behalf of the

16 National Capital Presbytery, and I'm delighted to

17 have this opportunity.

18 The most important and unique expression

19 which the faith community can present to you is

20 that this Earth is home to all humans and all of

21 God's other creatures and they all deserve to have

22 places to live and thrive that will not do them417

1 harm but, rather, nourish and advance their lives

2 and health. We believe that God gave this Earth

3 as the only one for living creatures as a gift of

4 our salvation and that all humans have a godly

5 obligation to protect and preserve all our places

6 of life.

7 That coal ash is being created as waste

8 from burning coal as a process to produce

9 electricity, we must reduce our energy use, but we

10 must also stop carelessly accumulating the ash

11 which thereby pollutes that land and all the

12 bodies of water affected. That surely mea ns our

13 ocean which we are rapidly acidifying and

14 destroying the food chain of fish and threatening

15 the lives of fish

- dependent millions of people.

16 Thus

, the local humans are severely threatened by

17 pollutants near the source

, and the rest of us

18 downstream

, whether an intended consequence or not.

19 The recent report of the Ohio River

20 pollution should be enoug h to require all ash

21 runoff to be restricted by Subtitle C of the

22 Resource Conservation and Recovery Act. Only that418

1 sectio n can give the protection living species

2 deserve. We must not forget the disaster in

3 Tennessee of December 2008.

4 Humans who ingest toxins such as arsenic

5 in the ash are subj ect to much greater risks of

6 short

- term and long

- term illnesses and chronic

7 diseases placing very high care costs on our

8 society while the coal crowd saves money and makes

9 bigger profi ts. We are going to be confronted

10 with more harmful waste mismanagement. Let us not

11 let the ash

- making crowd off the hook as a

12 precedent or barometer for future abuse. Think

13 nuclear waste.

14 All humans have a godly obligation to

15 protect and preserve all our places of life. All

16 of us in the United States have big problems of

17 using many more resources than we need for a

18 decent life and wasting much more than we have any

19 right to waste. We must focus on the imposition

20 of unanticipated risks on persons who had no idea

21 or expectation that such harms would be or could

22 be forthcoming. The corporation creating the risk419

1 knows to insure its risks and does so. We are

2 fast creating a world of unreasonable risks which

3 were not known or anticipated and for which there

4 is no protection for the bystander.

5 Our stewardship of the Earth and all

6 that live there must be accomplished as we think

7 God intends.

8 Thank you.

9 MR. DELLINGER: Could you state your

10 name?

11 MR. WHITLEY: W

- H

- I

- T

- L

- E

- Y, Thomas.

12 Whitley, that's my last name. All right?

13 MR. DELLINGER: Thank you. Number 152?

14 Would you please state your name?

15 MR. ABLARD: My name is Ed Ablard,

16 A

- B

- L

- A

- R

- D. I want to thank you for holding this

17 educational event today. I live in Alexandria

18 within sight and sound of the Mirant plant which

19 is to my immediate right rear within a mile. My

20 city made a deal to extend the life of the plant

21 and approved a scheme to blow the pollution out of

22 town and onto our neighbors across the river and420

1 into P.G. County. I think that deal was flawed.

2 The science is in as of this month. It comes to

3 us from ATSDR which is part of the Centers of

4 Disease Control. If you haven't seen the report,

5 I've got a copy of some of the notes from it and

6 I'd be happy to submit that with my comments for

7 the record.

8 The plan t creates health problems of

9 fine particulate matter, SO2 and I come to find in

10 conversation with the plant owner, Mirant, that it

11 produces coal ash and that the operating

12 regulations for the plant have not been reviewed

13 in some years.

14 I'm a member of the Episcopal Church in

15 Alexandria, St. Paul's Episcopal, on Pitt Street.

16 I'm also an active member with t he Virginia

17 Interfaith Center for Public Policy where I come

18 by the moniker of Interfaith Power and Light, and

19 I'm also a Sierra Club member. I can tell you

20 that God is not going to f ix this, that we've got

21 to do it and my thought is that it can't be done

22 by individuals. Government is going to have to do421

1 this. Government is the only effective and

2 standing organization that can possibly fix this

3 problem.

4 I've studied this problem from a

5 religious point of view for about 20 y ears and I

6 can tell you that all the religious themes

7 absolutely support protection of the health of the

8 people, the wildlife and the plant life over

9 protection of pocketbooks of the o wners of the

10 coal. I favor Subchapter C regulation and I'm

11 submitting my comments.

12 Thank you.

13 MR. DELLINGER: Thank you. Number 112?

14 M S. FIELDS: Good evening. My name is

15 Leslie Fields and I'm the Environmental Justice

16 and Community Partnerships Director for the Sierra

17 Club here in Washington, D.C. I want to thank you

18 for this opportunity to testify for the need that

19 coal ash be regulated, we prefer, under Subtitle C

20 of RCRA.

21 The Subtitle C option would effectively

22 regulate coal ash as a hazardous waste with the422

1 associated safeguards for storage, handling,

2 transport and disposal. The Sierra Policy has had

3 a board

- approved policy on hazardous management

4 since 1984 and it was revived in 1987 and 1989

5 that states in part that regulatory programs

6 should be specific and enforceable when possible,

7 and incentives should be encouraged to the best

8 management practices. Government responsibilities

9 include oversight of hazardous waste management

10 systems. Agencies involved must be well managed

11 and capable of coordinating the highly complex

12 system involving different levels of government,

13 the private sector, and the public.

14 I will also submit my comments in the

15 record and go on to say that these procedures for

16 handling such wastes by generators, recyclers,

17 transporters, treaters, and disposal should

18 include also protection of workers, should inc lude

19 rules governing facility siting

, operation

, and

20 closure, effective enforcement of the laws and

21 permit conditions and conscientious inspections in

22 order to ensure proper operatio n and accurate423

1 reporting.

2 The Sierra Club's Environmental Justice

3 and Community Partnerships program has provided

4 support to dozens of low

- income and communities of

5 color in their environmental justice struggles.

6 Our goal is to work with low

- income and

7 communities of color to overcome these

8 environmental assaults in their lives and

9 communities. Since Administrator Jackson has

10 designated environmental justice as one of the

11 seven EPA priorities, the EPA must keep this

12 priority as a central part of this rule making,

13 not as an after thought, not as something to do at

14 the end, not as something that we have to go back

15 and redo again.

16 In addition to regulating coal ash under

17 Subtitle C of RCRA, EPA must also evaluate how

18 this rule will impact low

- income communities of

19 color who already have disproportionate exposure to

20 industrial toxins. In addition, due to its vital

21 charge under Executive Order 12898, federal

22 actions to address environmental justice in424

1 minority populations and low

- income populations,

2 EPA must take immediate steps to recognize and

3 address environmental justice consider ation s of coal

4 ash regulation. Thus under Subtit le C, under the

5 reuse loophole there is the potential for coal ash

6 to be used as structural fill for development and

7 should be addressed.

8 An example of this was in Georgia, a

9 reuse technology company, a Georgia

- based company

10 which handles coal ash in cooperation with

11 Edgecombe County's County Development began using

12 coal ash as a landfill in the Fountain I ndustrial

13 Park near the city of Rocky Mount, in Edgecombe

14 County, North Carolina. The ash from these plants

15 as well as coal

- fired facility at the University

16 of North Carolina Chapel H ill was included in

17 that. Hurricane Floyd in 1999

-- the industrial

18 park was turned into a trailer park for 370

19 eastern North Carolina families displaced by

20 disaster, many from Prince ville, an historical

21 African American community. By the time the soil

22 covering the fill had eroded, the coal ash had425

1 been exposed.

2 I see my time is up. Thank you, and

3 I'll submit my remarks into the record.

4 MR. DELLINGER: Thank you. Number 237?

5 MR. GOLDBERG: My name is Vi ctor

6 Goldberg and I represent myself as a citizen.

7 On this talk about the effects of the

8 ash that is so terrible, my thought is that there

9 is also talk about solar energy, wi nd energy, and

10 according to the current numbers, this is more

11 expensive than coal

- based energy. But the truth

12 is that we are not paying the full price for that

13 coal energy. Those com panies that use coal

, maybe

14 they should pay for the health insurance of all

15 the population that is being affected by their

16 coal burning. Maybe they should pay for the

17 agricultural dam age that they produce with acid

18 rain. Then we would be talking about the real

19 price of coal and electricity and then it would be

20 interesting to compare that price with solar

21 energy an d wind energy.

22 Thank you.426

1 MR. DELLINGER: Is there anyone else who

2 wants to speak now?

3 MR. CURLE: My name is John Curle and

4 I'm a citizen of Fairfax County. This is the

5 first hearing that I've been to and I'm actually

6 quite surprised that there wasn't something done

7 sooner. I regard that every S uperfund site is

8 pretty much a failure of the EPA. As I understand

9 it, there have been 1,279 S uperfund sites that

10 have been set up. I think 341 of those have been

11 resolved and I think that any additional S uperfund

12 sites would be a further failure of the EPA and

13 anything that we can and should do to prevent that

14 should be done. I don't fee l that the proposed

15 Subtitle C goes far enough to regulate coal ash.

16 I think that the EPA can do a lot better and I

17 think they have that authority and responsibility

18 to the government and to the people of the

19 government.

20 I can't say enough that there have been

21 plenty of great arguments here, economic arguments

22 as well as very heart

- felt arguments, but I th ink427

1 it's unconscionable what we're doing in ignoring

2 these problems.

3 That's all I have to say. Thank you.

4 MR. DELLINGER: Thank you. Is there

5 anyone else? We'll take another 10

- minute recess.

6 (Recess)

7 MR. DELLINGER: Number 153.

8 RE V. PARKER: My name is Reverend Janet

9 Parker and I'm the pastor for Parish Life at Rock

10 Spring Congregational United Church of Christ

11 right here in Arlington. I want to begin by

12 thank ing the EPA for holding this public hearing.

13 I think it is so important for the EPA to be

14 recognizing the need to act on what I believe and

15 many believe is a very serious public health and

16 environmental issue.

17 I know that you're hearing expert

18 testimony on the damaging effects of coal ash on

19 human health and ecosystems. As a minister, I

20 can't claim to hav e all the scientific knowledge

21 and understanding of the toxic nature of coal ash

22 waste with its poisonous load of mercury, arsenic,428

1 lead, and other toxins, but what I can speak to is

2 the moral urgency of the issue facing us.

3 My tradition teaches me that the first

4 human beings were given responsibilities to care

5 for this marvelous creation that God has given us.

6 When Adam was placed in the Garden of Eden, which

7 was perfectly fitted to sustain human and all

8 other forms of live, Adam was charged t o tend and

9 keep the garden. Two chapters later in the Book

10 of Genesis we read about Cain and Able and we hear

11 from Cain the anguished question, "Am I my

12 brothers' keeper?" The answer clearly is yes.

13 These two stories teach us that human beings have

14 moral responsibilities to care for our planet and

15 to care for our fellow brothers and sisters for we

16 are both our Ear th's keeper and our neighbor's

17 keeper.

18 Sadly, human beings have not lived up to

19 our responsibilities. We have fouled our planet

20 and allowed untamed industry to harm vulnerab le

21 human populations, but we can do better. We can

22 be better. There is some excuse for failing to429

1 act out of ignorance, b ut we are no longer

2 ignorant. We know, and I know that the EPA now

3 knows, that coal ash is harmful to human beings

4 causing respiratory problems, organ damage,

5 neurological and reprodu ctive problems, and

6 dramatically increased cancer risks. Now that we

7 know, we cannot fail to act.

8 I have a friend who lives in Wise

9 County, Virginia. Her drinking water com es from

10 the Glen River and Clinch River watershed. These

11 are the two Virginia rivers that were just

12 identified in a report by the Environmental

13 Integrity Project as being poisoned by coal ash.

14 I shuddered at the thought of my friend and her

15 family and neighbors being poisoned by drinking

16 water out of their own tap. This should not

17 happen in America.

18 I urge the EPA to adopt the Subtitle C

19 option of the Coal Combustion Residuals Rule in

20 order to protect my friend and everyone else

21 threatened by unregulated dumping of coal ash.

22 This is the only option that will really work to430

1 bring protections for the entire country from the

2 dangers of coal ash.

3 Thank you for your time and attention.

4 MR. DELLINGER: Thank you. Number 238?

5 MR. HAGER: I'm Lawrence Christie Hager

6 and I live in Falls Church. I've been involved in

7 safe energy work since the late 1970s. In 1991

,

8 for my college twenty

- fifth

, I led a class

9 initiative that convinced the university that it

10 should do more in environmental educat ion and

11 ended up having dual majors with the environment

12 on one side and almost anything else a student

13 chose on the other side, so I've given a lot and I

14 hope for a lot and I've seen so little in 35 years

15 since 1976 when I started doing work in this area.

16 I'm concerned about coal ash pollution

17 to be sure. I'm also concerned about the airborne

18 pollution t hat goes up the stack and settles back

19 into our water and onto our land including our

20 crop lands. And I'm also concerned about what

21 happens when we take coal from the ground by

22 mounta intop removal. I think we've done much too431

1 much.

2 I recall in the 1970s someone at Harvard

3 Business School wrote a book called Bridge to the

4 Future: Coal, and he envisioned a move rapidly

5 toward more safe energy but coal would fill the

6 gap until around this time. Something has been

7 missing. We have not done the renewable work

8 where the government could have made major

9 support. We have not even done the basic

10 upgrading of the insulation in our homes by and

11 large. We're stu ck back where we were in about

12 1978 or 1979 and I'm appalled. I have a couple of

13 kids who are going to soon be having kids of their

14 own and I'm distressed at what we're leaving.

15 I've got to say although I'm concerned

16 about coal, when I hear them talking about

17 injecting steam into the ground to get out either

18 sand tar or shale oil deposits, I'm equally

19 app alled at the gross high technology where what

20 we need is to insulate our homes and to drive

21 smaller cars. I think coal is one of the places

22 that we've made the biggest mistake and we need to432

1 move very rapidly to quit depending on coal.

2 Thank you.

3 MR. DELLINGER: Is there anyone else who

4 wants to speak now? We'll take another 10

- minute

5 break and see if anyone else shows up.

6 (Recess)

7 MR. DELLINGER: You have to state your

8 name into the microp hone even though we have it

9 here on the sheet.

10 MS. CHIEFFO: Should I give my

11 hardcopies over there now or after?

12 MR. DELLINGER: After is fine.

13 MS. CHIEFFO: Good evening. My name is

14 Sara Chieffo and I'm Deputy Legislative Director

15 of the League of Conservation Voters. We were

16 founded over 40 years ago and LCV works to turn

17 environmental values into national priorities. We

18 produce the Annual National Environmental

19 Scorecard, an important public education tool that

20 provides factual information about the most

21 important environmental legislation that's

22 considered each year, and it shows the433

1 corresponding voting records of all members of

2 Congress. LCV also works in close partnership

3 with state

- based leagues in over 30 states.

4 I'm here to encourage the EPA to adopt

5 strong federally enforceable coal ash regul ations.

6 U.S. coal

- fired power plants generate more than

7 130 million tons of toxic coal ash annually. Coal

8 ash and other combustion wastes are not currently

9 subject to federal regulat ion and most state laws

10 are either far too weak or nonexistent. The

11 dangers coal ash poses to public health and the

12 environment have been known for a long time. This

13 coal combustion byproduct is known to contain

14 harmful metals and chemicals like arsenic, lead,

15 and mercury that lead to increased rates of

16 cancer, birth defects, learning disabilities, and

17 other illne sses.

18 Currently much of the coal ash waste is

19 stored in ponds, landfills, and abandoned mines

20 that do not have adequate safeguards. Whether

21 through large

- scale and highly vi sible disasters

22 like the massive coal ash spill in Tennessee in434

1 2008, or the less

- visible contamination of

2 groundwater, com munities, public health, and the

3 environment are unnecessarily being threatened.

4 In fact, a report released just last week by the

5 Environmental Integrity Project, Earthjustice, and

6 the Sierra Club

, bring s the total number of known

7 contamination sites from toxic coal ash pollution

8 to 137 sites spread across 34 states.

9 LCV strongly encourages the

10 administrat ion to adopt the Subtitle C option that

11 has been proposed. Families across the country

12 and drinking water sources will only be protected

13 by federally enforceable standards and not by

14 guidance to states which will only perpetuate the

15 patchwork of inadequate state regulations that we

16 currently have. No community should be exposed to

17 these health risks especially when safer disposal

18 methods exist and could be readily implemented.

19 Thank you.

20 MR. DELLINGER: Thank you.

21 (Recess)

22 MR. DELLINGER: Do we have two or three435

1 speakers? Do you want to go in any particular

2 order? 157 and 239 are the numbers. We usually

3 start with the lowest number.

4 MS. ANDELA: My name is Cynthia Andela.

5 I'm the President of Andela Products. It's a

6 woman

- owned business that manufacture s recycling

7 equipment and clean gl ass plants. We also own and

8 operate a recycling facility that recycles glass,

9 waste glass, into sand

- blasting abrasives. I'm

10 here today to speak about the beneficial use of

11 coal slag as a blasting abrasive and what we

12 should consider.

13 I'd like to thank everyone for this

14 opportunity to voice my opinion with regard to the

15 long

- term beneficial use of boiler slag. I have

16 some major concerns regarding boiler slag or coal

17 slag currently being approved by the Environmental

18 Protection Agency as a blasting abrasive. There

19 are two fundamental issues that contradict the

20 EPA's determination regarding coal slag abrasives,

21 the greatly reduced particle size compared to

22 other beneficial uses and those particles' close436

1 proximity to human tissue and the environment.

2 I really do understand and support EPA's

3 decision to allow some of the beneficial uses for

4 boiler slag when

, and only when the encapsulated

5 grains are kept whole throughout their useful life

6 cycle. Using boiler slag as a roofing granule

, for

7 example

, provides a long

- term usefu l and safe

8 alternative to land filling. In this case, all

9 the hazardous material that's encapsulated in the

10 boiler slag is contained in the original

11 sand

- sized particle and they canno t harm the

12 surrounding people or the environment.

13 In contrast, let's examine the life

14 cycle of a single granular piece of boiler slag

15 that's used as a blasting abrasive. The molten

16 granul e containing the heavy metals, the carbon,

17 and other contaminates falls from the bottom of a

18 coal

- burning power plant into a pool of water. It

19 is collected, processed and size sorted. The

20 granule is shipped to an industrial blasting

21 location, perhaps a shipyard or bridge that needs

22 refurbishment. The granule is loaded into a437

1 blasting pot and forced through a hose at 100

- plus

2 pounds per square inch until it smashes into the

3 ship or bridge and shatters into hundreds of

4 pieces

, some as small as one

- thousandth of a

5 millimeter. The formerly singular granular now

6 exists as hundreds o f miniscule granules that are

7 now light enough to float free in the air. The

8 total exposed surface area of a single granul e

9 has now increased exponentially. The granul e s

10 and their newly exposed surfaces are now free and

11 willing to contaminate the ocean near the

12 shipyard, the river under the bridge

, or the lung

13 of the sand blaster.

14 The EPA's decision to allow boiler slag

15 to be used as a blasting abrasive may be revised

16 for the health and safety of all citizens. I

17 would advocate that in closing I'm asking that you

18 remove boiler slag as an approved blasting agent

19 as many safer alternatives are available. I

20 recommend that you limit the beneficial use of

21 boiler slag to other non

- blasting uses.

22 Thank you.438

1 MR. DELLINGER: Thank you.

2 MS. JACKSON: My name is Lisa M.

3 Jackson, not Lisa P. Jackson from EPA. I came

4 this morning to listen to the debate and felt

5 compelled to come back to speak. I'm the owner of

6 a woman

- owned small business bringing innovative

7 green solutions to the marketplace. We market

8 infrastructure out of recycled materials and can

9 take c oal ash and encapsulate it with composites

10 and build extremely strong, lightweight

11 infrastructure products that are virtually

12 indestructible

, making a product that is inert and

13 will no t leach toxins into the environment.

14 We also take recycled glass and create

15 clean nontoxic abrasives that are truly safe for

16 the environment, unlike coal slag which also will

17 not cause silicosis, but is still blasting toxic

18 byproducts into the air and water. I am told, for

19 example, that the Port of Los Angeles is

20 struggling with how to deal with the sludge they

21 will be dredging partly due to the toxins that

22 sand blasting with coal slag has contributed to439

1 over the years. As a business owner c reating

2 green jobs, I want to see responsible recycling

3 and encourage true green business growth. If we

4 can take coal boiler slag and create unique inert

5 byproducts for roofing shingl es, terrific, but

6 using coal boiler slag to blast into the air for

7 sand blasting and calling it the safe alternative

8 is at best misleading, and after listening to the

9 testimony today

, is down right criminal.

10 We have the ability to take dirty glass

11 and recycle it into clean glass that is not only

12 truly safe as it is amorphous silica like coal

13 slag, but it i s free of arsenic, lead, selenium

14 and the other carcinogenic toxins discussed today.

15 The use of clean recycled glass is also more

16 effective than coal slag as it does not leave a

17 black oily residue that needs to be cleaned with

18 additional surfactants. Making the right choice

19 does not mean loss of jobs. We can create green

20 jobs by choosing to use the right alternative

21 choice. Coal boiler slag is not that choice.

22 Today roughly 67 percent of the glass we440

1 recycle still ends up in a landfill. We now have

2 technology to take this dirty glass and provide a

3 clean glass facility to produce clean glass for

4 abrasive sand blasting. Coal slag is glass with

5 toxins. Our market research shows that coal slag

6 has been and still is the medium of choice because

7 it is the cheapest. I ascertain that going with

8 the cheap alternative is costing us dearly in

9 damage to our he alth and our environment.

10 Some from CHAR this morning spoke about

11 their successful recycling program and that if EPA

12 supports Subtitle C it would damage the recycling

13 industr y. I am here to tell you if we support

14 appropriate use of the appropriate materials for

15 sand blasting we can actually strengthen the use

16 of the recycling program as well as create green

17 jobs. Coal slag is appropriate for tile and

18 concrete and not for sand blasting. I'm going to

19 skip it because I'm almost done.

20 In short, there are appropriate uses of

21 coa l byproducts

, and coal slag for sand blasting is

22 not one that should be considered safe, and my441

1 hope is that EPA can and will truly different iate

2 this.

3 Thank you, Lisa P. Jackson, for the

4 opportunity to speak today.

5 MR. DELLINGER: Thank you. We'll take

6 another 10

- m inute break.

7 (Recess)

8 MR. HOFFMAN: This is Steven Hoffman,

9 U.S. Environmental Protection Agency, officially

10 closing the hearing August 30 at 9:35 p.m.

11 (Whereupon, at 9:35 p.m., the

12 PROCEEDINGS were adjourned.)

13

14 * * * * *

15

16

17

18

19

20

21

22442

1 CERTIFICATE OF NOTARY PUBLIC

2 I, Carleton J. Anderson, III do hereby

3 certify that the witness whose testimony appears

4 in the foregoing hearing was duly sworn by me;

5 that the testimony of said witness was taken by me

6 and thereafter reduced to print under my

7 direction; that said deposition is a true record

8 of the testimony given by said witness; that I am

9 neither counsel for, related to, nor employed by

10 any of the parties to the action in which the se

11 proceedings were taken; and, furthermore, that I

12 am neither a relative or employee of any attorney

13 or counsel employed by the parties hereto, nor

14 financially or otherwise interested in the outcome

15 of this action.

16 /s/Carleton J. Anderson, III

17

18

19 Notary Public in and for the

20 Commonwealth of Virginia

21 Commissi on No. 351998

22 Expires: November 30, 2012