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95–006 PDF 2015

S. HRG. 114–57 

OVERSIGHT OF THE ENVIRONMENTAL 

PROTECTION AGENCY’S FINAL RULE TO 

REGULATE DISPOSAL OF COAL COMBUSTION 

RESIDUALS FROM ELECTRIC UTILITIES 

HEARING 

BEFORE THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

JUNE 17, 2015 

Printed for the use of the Committee on Environment and Public Works 

( 

Available via the World Wide Web: http://www.fdsys.gpo.gov 

(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

JAMES M. INHOFE, Oklahoma, Chairman 

DAVID VITTER, Louisiana 

JOHN BARRASSO, Wyoming 

SHELLEY MOORE CAPITO, West Virginia 

MIKE CRAPO, Idaho 

JOHN BOOZMAN, Arkansas 

JEFF SESSIONS, Alabama 

ROGER WICKER, Mississippi 

DEB FISCHER, Nebraska 

MIKE ROUNDS, South Dakota 

DAN SULLIVAN, Alaska 

BARBARA BOXER, California 

THOMAS R. CARPER, Delaware 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

SHELDON WHITEHOUSE, Rhode Island 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER, New Jersey 

EDWARD J. MARKEY, Massachusetts 

RYAN JACKSON, Majority Staff Director 

BETTINA POIRIER, Democratic Staff Director 

(III) 

C O N T E N T S 

Page 

WEDNESDAY, JUNE 17, 2015 

OPENING STATEMENTS 

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma .................... 1 

Boxer, Hon. Barbara, U.S. Senator from the State of California ........................ 4 

WITNESSES 

Holleman, Frank S. III, Senior Attorney, Southern Environmental Law Center .......................................................................................................................... 6

Prepared statement .......................................................................................... 9 

Cave, Nancy, North Coast Director, Coastal Conservation League .................... 24 

Prepared statement .......................................................................................... 26 

Dunn, Alexandra, Executive Director and General Counsel, Environmental 

Council of the States ............................................................................................ 29 

Prepared statement .......................................................................................... 31 

Kezar, Mike, General Manager, South Texas Electric Cooperative, on Behalf 

of National Rural Electric Cooperative Association .......................................... 40 

Prepared statement .......................................................................................... 42 

Gray, Danny, Executive Vice President, Charah Inc. on Behalf of the American Coal Ash Association ................................................................................... 128 

Prepared statement .......................................................................................... 130 

ADDITIONAL MATERIAL 

Letters: 

Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO) .................................................................................................. 203 

Colorado Department of Public Health & Environment ............................... 207 

State of Nebraska, Department of Environmental Quality .......................... 208 

American Society of Concrete Contractors (ASCC) ....................................... 209 

Santee Cooper ................................................................................................... 211 

Indiana Department of Environmental Management ................................... 213 

State of Wisconsin Department of Natural Resources .................................. 215 

(1) 

OVERSIGHT OF THE ENVIRONMENTAL PROTECTION AGENCY’S FINAL RULE TO REGULATE DISPOSAL OF COAL COMBUSTION RESIDUALS FROM ELECTRIC UTILITIES 

WEDNESDAY, JUNE 17, 2015 

U.S. SENATE, COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, Washington, DC. 

The committee met, pursuant to notice, at 9:31 a.m. in room 406, 

Dirksen Senate Building, Hon. James Inhofe (chairman of the committee) presiding. 

Present: Senators Inhofe, Barrasso, Capito, Boozman, Sessions, 

Fischer. Rounds, Boxer, Carper, Booker and Markey. 

OPENING STATEMENT OF HON. JAMES INHOFE, 

U.S. SENATOR FROM THE STATE OF OKLAHOMA 

Senator INHOFE. Our meeting will come to order. 

Today’s hearing is on the EPA’s final rule regulating the disposal 

of coal ash under the Resource and Conservation Recovery Act. 

This is an important issue that cuts across the committee’s areas 

of jurisdiction from the regulation of waste to the impact of EPA’s 

other rules on electric utilities and to the importance of coal ash 

to highways and infrastructure projects. 

EPA has extensively studied the safety of coal ash. For decades, 

coal ash has been regulated by States as non-hazardous waste. It 

is also worth noting that coal ash is an important ingredient in 

concrete and helps extend the life span of and control costs of the 

concrete used in roads and bridges. In fact, many State Departments of Transportation require the use of coal ash in their road 

projects. 

In 2010, in response to a coal ash spill at the TVA’s Kingston, 

Tennessee power plant, EPA issued a proposed rule containing two 

options for regulating coal ash, either regulating as a hazardous 

waste, which would have imposed unnecessary and burdensome 

cradle to grave requirements on the generation, transportation and 

disposal of coal ash, or continue to regulate it as a non-hazardous 

waste. 

The EPA rule, finalized last December, correctly determined that 

coal ash should continue to be regulated as non-hazardous waste. 

It also established minimum, one size fits all standards for the 

management and disposal of coal ash in landfills and surface impoundments. 

2 

EPA’s authority to regulate non-hazardous waste under RCRA is 

limited. EPA’s rule encourages States to incorporate the minimum 

standards into their solid waste management programs. 

EPA does not have the authority, under the current law, to improve State permitting programs or to require facilities to implement the rule’s requirements. Instead, the rule’s requirements are 

enforceable only through citizen suits. 

States and the affected utilities have raised significant concerns 

with this approach and the possibility that they would pay citizen 

suits even if they were in compliance with their State’s requirements. 

Although the final rule agreed that coal ash is non-hazardous, it 

left open the possibility that EPA would change this determination 

in the future. This is causing unnecessary uncertainty to the electric utilities troubled by this rule and to the companies that use 

and recycle coal ash. 

The House is currently considering legislation that would clarify 

EPA’s authority in the status of coal ash as a non-hazardous waste. 

Although the coal ash issue has not received much attention from 

the Environment and Public Works Committee in recent years, it 

certainly warrants our attention and we should be looking to get 

it right. 

The EPA rule, which was published in the Federal Register in 

April, goes into effect in October 2015. That is not much time for 

States and affected utilities to fully analyze and begin implementing the rule’s technical standards. 

[The prepared statement of Senator Inhofe follows:] 

STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR

FROM THE STATE OF OKLAHOMA

Today’s hearing is on EPA’s final rule regulating the disposal of coal ash under 

the Resource Conservation and Recovery Act. 

This is an important issue that cuts across the Committee’s areas of jurisdiction— 

from the regulation of waste, to the impact of EPA’s other rules on electric utilities, 

and to the importance of coal ash to highways and infrastructure projects. 

EPA has extensively studied the safety of coal ash. For decades, coal ash has been 

regulated as nonhazardous waste by states. It is also worth noting that coal ash is 

an important ingredient in concrete and helps extend the lifespan of and control 

costs for the concrete used in roads and bridges. In fact, many State Departments 

of Transportation require the use of coal ash in their road projects. 

In 2010, in response to a coal ash spill at the TVA’s Kingston, Tennessee power 

plant, EPA issued a proposed rule containing two options for regulating coal ash: 

either regulate it as a hazardous waste, which would have imposed unnecessary and 

burdensome cradle-to-grave requirements on the generation, transportation, and 

disposal of coal ash, or continue to regulate it as a nonhazardous waste. 

The EPA rule finalized last December correctly determined that coal ash should 

continue to be regulated as a nonhazardous waste. It also established minimum onesize-fits all standards for the management and disposal of coal ash in landfills and 

surface impoundments. 

EPA’s authority to regulate nonhazardous waste under RCRA is limited. EPA’s 

rule encourages states to incorporate the minimum standards into their solid waste 

management programs, but EPA does not have authority under current law to approve State permitting programs or to require facilities to implement the rule’s requirements. 

Instead, the rule’s requirements are enforceable only through citizen suits. States 

and the affected utilities have raised significant concerns with this approach and 

the possibility that they would face citizen suits even if they were in compliance 

with their state’s requirements. 

Although the final rule agreed that coal ash is nonhazardous, it left open the possibility that EPA will change this determination in the future. This is causing unVerDate Aug 31 2005 14:06 Aug 19, 2015 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\95006.TXT VERN
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necessary uncertainty to the electric utilities covered by this rule and to the companies that use and recycle coal ash. 

The House is currently considering legislation that would clarify EPA’s authority 

and the status of coal ash as a nonhazardous waste. Although the coal ash issue 

has not received much attention from the EPW Committee in recent years, it certainly warrants our attention and we should be looking to get it right. 

The EPA rule, which was published in the Federal Register only in April, goes 

into effect in October this year. That is not much time for states and affected utilities to fully analyze and begin implementing the rule’s technical standards. 

We have an excellent panel of witnesses before us representing a range of views 

on the rule’s impact on states, affected utilities, the public, and the beneficial use 

industry. We have: 

1) Alexandra Dunn is Executive Director and General Counsel of the Environmental Council of the States; 

2) Mike Kezar is the General Manager of the South Texas Electric Cooperative 

and he is here on behalf of National Rural Electric Cooperative Association; 

3) Danny Gray is Executive Vice President of Charah Inc., a coal ash marketer 

based in Kentucky and he is here on behalf of the American Coal Ash Association; 

4) Frank S. Holleman, III, a senior attorney with the Southern Environmental 

Law Center; and 

5) Nancy Cave, the North Coast Director of the Coastal Conservation League in 

South Carolina. 

I am especially interested in hearing their views on the challenges in implementing the EPA rule, whether Congress should consider legislation to give EPA 

authority to approve State permitting programs, and ways to increase the beneficial 

use of coal ash. 

Senator INHOFE. We have an excellent panel of witnesses before 

us representing a range of views on the rule’s impact on States, affected utilities, the public and the beneficial use of industry. 

We have: Nancy Cave, North Coast Director, Coastal Conservation League in South Carolina; Frank S. Holleman, III, Senior Attorney, Southern Environmental Law Center; Alexandra Dunn, Executive Director and General Counsel, Environmental Council of 

the States; Mike Kezar, General Manager, South Texas Electric Cooperative, on behalf of National Rural Electric Cooperative Association; and last, Danny Gray, Executive Vice President of Charah 

Inc., a coal ash marketer based in Kentucky, on behalf of the 

American Coal Ash Association. 

I am especially interested in hearing their views. I might mention to you, Mr. Kezar, I have had extensive personal involvement 

with south Texas, the area there. I was a developer down there for 

many years, so I know them. 

Senator BOXER. 

Senator BOXER. Mr. Chairman, could I have 15 seconds to laud 

my Golden State Warriors? 

Senator INHOFE. Of course. Yes, you may do that. I want equal 

time for what is going to be happening to the Oklahoma City Thunder. It is a surprise. Maybe I should not reveal it here. 

Senator BOXER. Mr. Chairman, I wanted to say how proud I am 

of this team. Forty years ago, Stu and I had season tickets to the 

Warriors, 40 years ago, and we saw them win. It took 40 years. 

Now I am leaving politics. Then I was just entering politics. 

It is a wonderful moment for us, those of us who have rooted for 

the Warriors. 

Senator INHOFE. Your 15 seconds has expired. 

Senator BOXER. That is not fair. It is the Senate. We cannot even 

breathe in 15 seconds. 

I will close with this. I think we all can learn from watching this 

team going against the greatest player in the world how important 

4 

teamwork is and how much can be done when you have cooperation, as we do on highways. 

Also, there was one more thing I was particularly proud of. That 

is that short players really are good. I just wanted to note that for 

my Chairman. 

That is it. Congratulations Warriors. 

OPENING STATEMENT OF HON. BARBARA BOXER, 

U.S. SENATOR FROM THE STATE OF CALIFORNIA 

Senator BOXER. In today’s hearing, we are examining the EPA’s 

first ever national standards for the disposal of coal ash. I really 

believe this rule ought to have a chance to work. 

I personally would have preferred that EPA issue a stronger 

rule. I am on the other side of this. I think they should have been 

tougher and stronger. I think they should have designated coal ash 

as hazardous waste, but I do think the rule is first step. Frankly, 

I am dismayed that there is legislation moving through the House 

that attempts to weaken this rule even further, just kind of throw 

it out if a State did not like it. 

Coal ash is so dangerous because it contains many toxins. No one 

really talks about this: mercury, arsenic and lead. If you ask a person on the street, should there be a rule to make sure this stuff 

does not get in front of my house in a spill or into my water, I 

think they would say, isn’t there one now? The answer is no. Right 

now, many of these are treated like household waste. We know 

these toxic materials cause cancer and harm children’s development, including brain development. 

Coal ash is often stored in impoundments that are unlined and 

located adjacent to rivers and lakes, where the toxic substances 

leach into the groundwater and surface waters. In the worst case 

scenario, these impoundments can break, spreading toxic waste 

throughout communities. It is hard to believe that it has been more 

than 6 years since the devastating spill at the Tennessee Valley 

Authority’s coal ash pond in Kingston, Tennessee. We will show 

you a chart. 

At 1 a.m. on Monday, December 22, 2008, an earthen wall failed 

on a 40-acre surface impoundment holding coal ash. More than one 

billion gallons of waste rushed down the valley like an avalanche. 

These pictures were shown on the front pages of most of the newspapers. 

They covered more than 300 acres, destroying and damaging 

homes, and polluting the Emory River. The volume of ash and 

water was nearly 100 times greater than the amount of oil spilled 

in the Exxon Valdez disaster. 

In January 2009, I chaired an Environment and Public Works 

Committee hearing on the TVA coal ash spill to explore how the 

spill happened and how we can prevent events like this from happening again. 

I want to compliment TVA. They have spent over a billion dollars 

cleaning up this spill and made the business decision to convert all 

of their facilities from wet to dry handling of coal ash. Good for 

them. 

In the wake of the TVA coal ash spill, I called on EPA to assess 

the hazards associated with coal ash ponds around the Country. 

5 

EPA identified 44 coal ash ponds in 10 States that present a ‘‘high 

hazard,’’ meaning that if the pond were to fail, it would pose a 

threat to human life. 

EPA required facilities to submit corrective action plans for those 

ponds that were found to pose a serious risk of failure. Unfortunately, EPA relied solely on the States and the utilities to follow 

through with the corrective action plans. That was not enough. We 

need this rule. 

Duke Energy’s Dan River facility in North Carolina is one example of a company not following through on a corrective action plan. 

Duke Energy agreed in its corrective action plan to monitor a metal 

stormwater pipe for signs of potential failure. In February 2014, 

that very same pipe rusted out and failed, spilling toxic coal ash 

into the Dan River, a source of drinking water for communities in 

North Carolina and Virginia. 

Since the spill, Duke Energy has pled guilty to criminal charges 

involving its coal ash ponds. We should not have to get to this 

point. We should prevent these things, not parade CEOs and members of these utilities in front of the jailhouse. 

A criminal investigation of the North Carolina State agency 

charged with protecting public health and the environment is ongoing. This is serious stuff. We are not helping the utilities if we turn 

our backs on this rule. I think we are harming these utilities. We 

ought to have a standard for everyone that is good, decent and fair. 

I do not have any coal in my State. Maybe I have a drop, but 

very little. This does not impact me. I am not talking as someone 

who is selfish who says my people are getting hurt. I am talking 

as an American citizen who cares about all of our children. While 

I believe we should have and could have done more to address 

these dangers, this rule will go a long way to protecting people 

from toxic coal ash. 

I ask that the rest of my statement be put in the record. 

Mr. Chairman, thank you for letting me talk about my Warriors. 

Thank you. 

[The prepared statement of Senator Boxer follows:] 

STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR

FROM THE STATE OF CALIFORNIA

Today’s hearing will examine the EPA’s first ever national standards for the disposal of coal ash. I strongly believe that the EPA rule must be given a chance to 

work. While I would have preferred that EPA issue a stronger rule—designating 

coal ash as ‘‘hazardous waste’’—EPA’s new rule is an important step toward addressing the dangers of coal ash. I am dismayed that there is legislation moving 

through the House that attempts to weaken this rule even further. 

Coal ash is so dangerous because it contains many toxins, such as mercury, arsenic, and lead. These toxic materials are known to cause cancer and harm children’s development, including brain development. Coal ash is often stored in impoundments that are unlined and located adjacent to rivers and lakes, where the 

toxic substances leach into the groundwater and surface waters. In the worst case 

scenario, these impoundments can break, spreading toxic waste throughout communities. It is hard to believe that it has been more than 6 years since the devastating 

spill at the Tennessee Valley Authority’s coal ash pond in Kingston, Tennessee. At 

1 o’clock AM on Monday, December 22, 2008, an earthen wall failed on a 40-acre 

surface impoundment holding coal ash. More than one billion gallons of waste 

rushed down the valley like an avalanche, covering more than 300 acres, destroying 

and damaging homes, and polluting the Emory River. The volume of ash and water 

was nearly 100 times greater than the amount of oil spilled in the Exxon Valdez 

disaster. 

6 

In January 2009, I chaired an EPW Committee hearing on the TVA coal ash spill 

to explore how the spill happened and how we can prevent events like this from 

happening again. TVA has spent over a billion dollars cleaning up this spill and has 

made the business decision to convert all of its facilities from wet to dry handling 

of coal ash. TVA took this responsible step to protect communities from future spills, 

and I commend TVA for its actions. In the wake of the TVA coal ash spill, I called 

on EPA to assess the hazards associated with coal ash ponds around the country. 

EPA identified 44 coal ash ponds in 10 states that present a ‘‘high hazard’’—meaning that if the pond were to fail, it would pose a threat to human life. EPA required 

facilities to submit corrective action plans for those ponds that were found to pose 

a serious risk of failure. Unfortunately, EPA relied solely on the states and the utilities to follow through with the corrective action plans, which was clearly not 

enough. 

Duke Energy’s Dan River facility in North Carolina is one example of a company 

not following through on a corrective action plan. Duke Energy agreed in its corrective action plan to monitor a metal stormwater pipe for signs of potential failure. 

In February 2014, that very same pipe rusted out and failed, spilling toxic coal ash 

into the Dan River, a source of drinking water for communities in North Carolina 

and Virginia. Since the spill, Duke Energy has pled guilty to criminal charges involving its coal ash ponds. A criminal investigation of the North Carolina State 

agency charged with protecting public health and the environment is ongoing. 

The EPA rule will provide critical public health protections, including groundwater monitoring, cleanup requirements, transparency, and preservation of each 

citizen’s right to protect their community from coal ash pollution. For the first time, 

utilities will have to test the groundwater surrounding their coal ash ponds and post 

that information online. This will allow citizens to know what is in their water and 

help prevent pregnant women and children from drinking groundwater that is contaminated with toxins. While I strongly believe EPA should have done more to address the dangers of coal ash, EPA’s rule will go a long way to protecting people 

from toxic coal ash in the future. 

Legislation being considered in the House of Representatives would delay many 

of the rule’s new health and safety protections, including the rule’s mandate to close 

inactive coal ash ponds. It would also eliminate public access to information about 

coal ash ponds and remove the rule’s national minimum standard for protection of 

health and the environment, allowing State programs to eliminate critical safety requirements. It is important that this new rule not be diluted by Congress. EPA 

should be allowed to move forward with critical new protections for the safety of 

our communities. 

Senator INHOFE. Of course, without objection. 

We will now hear from our witnesses. We will start with you, Mr. 

Holleman, and work across the room. 

Try to keep your remarks down to 5 minutes. Your entire statement will be made a part of the record. 

Mr. HOLLEMAN. 

STATEMENT OF FRANK S. HOLLEMAN, III, SENIOR ATTORNEY, 

SOUTHERN ENVIRONMENTAL LAW CENTER 

Mr. HOLLEMAN. Chairman Inhofe, Senator Boxer and members of 

the committee, thank you for listening to me today and inviting me 

here. 

My name is Frank Holleman. I live in Greenville, South Carolina. I am at the Southern Environmental Law Center. We work 

with local citizens in the south who are concerned about their communities’ futures and about clean water. 

Let me ask you to assume something for a minute. Assume that 

a Washington lobbyist came to your office with this request. We 

have a plan and we want you to support a bill that will help us 

make it easier to do. 

We have property on the banks of drinking water reservoirs and 

rivers across the United States. We want to dig big, unlined holes 

right next to these drinking water reservoirs and rivers. We will 

7 

dump millions of tons of industrial waste into these unlined pits 

next to these water bodies. By the way, you should know this waste 

contains things like arsenic and lead. 

Then we are going to fill these big pits with water and we are 

going to hold these lagoons, industrial waste lagoons, back from 

our rivers and drinking water reservoirs only by dikes made of 

earth that leak. Will you help us? 

I can imagine your reaction, but that is exactly what the trade 

associations are asking you to do by seeking to weaken or eliminate 

the EPA rule. 

As Senator Boxer pointed out, in the south we have seen dramatic harm from primitive coal ash disposal. We have had two catastrophes, TVA at Kingston and Duke Energy on the Dan River. 

In North Carolina today, the State is testing drinking water 

wells near Duke Energy’s coal ash site. Over 90 percent of the well 

owners have been told to stop drinking the water. 

In South Carolina, where I live, groundwater has been contaminated with arsenic at hundreds and hundreds of times the legal 

limit. Across the region, unlined pits are leaking into rivers and 

lakes at the rate of millions of gallons per day. 

In adopting this rule, as was pointed out, the EPA accepted the 

key demands of the utility and recycling industries. But the rule 

establishes some uniform, minimum standards, provides communities with information about local coal ash pollution, and preserves a citizen’s right to enforce the law when State bureaucracy 

simply will not do it. 

From what we have seen in the southeast, it is clear State agencies have not effectively enforced the law against these very politically powerful monopolies. In South Carolina where I live, for example, for years unlined coal ash disposal violated anti-pollution 

laws. There was no question about it. Yet the government had not 

taken action to force a cleanup. 

Local organizations like Nancy’s collected unpublicized information and enforced the law with the result that all three utilities in 

the State are cleaning up every one of their unlined riverfront coal 

ash disposal sites. One utility, Santee Cooper, says the cleanup we 

pushed for is a win-win for everyone. 

In North Carolina, no one was forcing Duke Energy, as mentioned earlier, to clean up its coal ash. Again, local organizations 

uncovered unpublicized information and took action to enforce the 

law. 

For the first time, the State government was forced to confirm 

that Duke Energy is violating the law everywhere it has stored coal 

ash in the State of North Carolina and confirmed that under oath. 

I have been a Duke customer my whole life. Duke Energy is the 

Nation’s largest and richest utility. It has now pleaded guilty to 

nine coal ash crimes committed in its home State. Two of those 

crimes led directly to the Dan River spill. 

Despite repeated warnings over almost 30 years that it was risky 

to have a corrugated metal pipe under a coal ash lagoon, Duke Energy management turned down requests from its own people to 

spend a few thousand dollars to inspect the pipe that later broke. 

The State never required the inspection. 

8 

Now Duke Energy has pleaded guilty, has to pay $102 million, 

is on nationwide criminal probation and is cooperating in a continuing investigation of the State agency. They are supposed to be 

enforcing the law. 

In summary, Mr. Chairman, in the south, we need the minimum 

protections of the EPA rule so that we will have clear standards 

for coal ash disposal, the people will have information they need 

about threats to their own communities, and the communities 

themselves will be able to protect themselves when bureaucracies 

will not do it. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Holleman follows:] 

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Senator INHOFE. Thank you, Mr. Holleman. 

Ms. CAVE. 

STATEMENT OF NANCY CAVE, NORTH COAST DIRECTOR, 

COASTAL CONSERVATION LEAGUE 

Ms. CAVE. Good Morning. I am Nancy Cave, North Coast Office 

Director of the South Carolina Coastal Conservation League, an environmental advocacy organization. 

I want to thank you, Chairman Inhofe, Senator Boxer and members of the committee for giving me this opportunity to testify 

today. 

I live and work in South Carolina. South Carolina, like other 

States, has not protected its citizens from the harmful impacts of 

coal ash. South Carolina’s regulatory program has failed. For years 

we have not been informed of toxic groundwater pollution and illegal activity. The State has turned a blind eye to utility violations, 

and State regulators have taken no effective action to clean up 

these dangerous sites. 

The EPA’s final rule is a critical first step. The rule gives people 

access to necessary information to decide how best to protect their 

health and well being, and the rule ensures citizens the right to enforce the law, even if State regulatory safeguards are not enforced, 

are diminished, or are nonexistent. 

In Conway, South Carolina, it was the State’s owned utility, Santee Cooper, that blatantly endangered the safety of its own customers. At the utility’s Grainger coal-fired electric generation plant, 

1.3 million tons of coal ash fills two unlined ponds adjacent to the 

Waccamaw River, which provides drinking water to communities 

up and down its banks. 

Since the 1990’s, Grainger’s leaking coal ash ponds have been releasing arsenic into groundwater at levels as high as 300 times the 

State’s drinking water standard. The South Carolina Department 

of Health and Environmental Control, the agency responsible for 

public health and safety, has been aware of this arsenic pollution 

for years. Yet they have neither informed the public nor done anything to stop it. 

In 2012, Santee Cooper closed the Grainger plant with plans to 

leave the toxic coal ash sitting where it was, in pits next to the 

river. When the Grainger Closure Plan was publicly released, I 

worked quickly to inform people of the coal plant’s years of healththreatening arsenic pollution. 

Following multiple public meetings and a presentation that I 

gave to the city council, the city of Conway passed a resolution calling on Santee Cooper to remove the coal ash. At the same time, the 

Coastal Conservation League and other community groups used a 

State statute that allowed citizen enforcement when the State bureaucracies failed to act. 

Santee Cooper asked for dismissal, but the judge refused. The 

State-owned utility agreed to negotiate. Today, Santee Cooper is removing and relocating all of Grainger’s 1.3 million tons of coal ash. 

It was the citizens’ actions that forced Santee Cooper to take the 

protective action of removing the coal ash. The State did not step 

in to force protection and the local government did not have jurisdiction. 

25 

South Carolinians near Duke Energy’s Robinson coal plant in 

Hartsville, face similar threats. The Robinson plant was opened in 

1959. Its 55-acre open, unlined coal ash pit, dug from porous sandy 

soil, is adjacent to Lake Robinson, one of the area’s most popular 

recreational lakes. 

Today, 4.2 million tons of coal ash extends 18 feet into the 

groundwater table. Test well results have shown groundwater arsenic levels at 1,000 ppb, over 100 times the legal limit. As more 

information was made public, Hartsville citizens wanted action. 

Duke Energy balked, but on the morning of April 30 before a public 

meeting was organized, Duke Energy announced it would remove 

and relocate the coal ash. 

This announcement was the direct result of public pressure and 

possible citizen action. Transparency, information and protective 

action as required by EPA’s final rule must not be removed or diminished. 

The rule, as written, is our only line of defense against utilities 

that have demonstrated they are unwilling to take responsibility 

and affordable actions to safely dispose of their toxic waste. The 

final rule is our only line of defense against States that have demonstrated they are unwilling or unable to protect their citizens. 

Thank you. 

[The prepared statement of Ms. Cave follows:] 

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Senator INHOFE. Thank you, Ms. Cave. 

Ms. DUNN. 

STATEMENT OF ALEXANDRA DUNN, EXECUTIVE DIRECTOR 

AND GENERAL COUNSEL, ENVIRONMENTAL COUNCIL OF 

THE STATES 

Ms. DUNN. Good morning, Chairman Inhofe, Ranking Member 

Boxer, and members of the committee. I am Alexandra Dunn, Executive Director and General Counsel of the Environmental Council 

of the States. 

We are the national non-profit association of U.S. State and territorial environmental commissioners who have been referenced as 

perhaps not doing the most effective job as possible. I would like 

to give you some thoughts on the State role in implementation of 

CCR regulations. 

There has been so much dialog over so many years on CCR management and surface impoundments. What I am able to bring you 

today is something that is unusual in the environmental world 

days, something that all 50 States agree upon and how we should 

regulate. 

You cannot find that in water, you cannot find that in air these 

days, but you can find it in coal combustion residuals. We have a 

position going back to 2008 that is supported by all 50 States. 

States are well familiar with the cases that you have heard 

about, the devastating environmental property damage and human 

health impacts that coal releases can cause. They do a mission to 

serve the public and protect water supplies and to regulate. 

Because it has taken so long for there to be a Federal rule, many 

States have programs to permit these facilities, to oversee them 

and to regulate them. We have had many opportunities where 

States have been sharing best practices with one another, helping 

each State improve its program by learning from its neighbors and 

States in other parts of the Country. 

Now we have a final Federal rule which States do not oppose. We 

actually think the final Federal rule is quite good. It reflects a lot 

of strong research by the agency. However, there is an implementation problem with the final rule and a lack of flexibility that we 

would like hopefully this committee to help us address. 

First, I should say on the determination that it is non-hazardous 

waste coal ash, we support life cycle management of waste in this 

Country. There are tons and tons of coal ash. The more coal ash 

that can be put into wallboard and roads and reused means there 

is less coal ash in the ponds. That is important. We do support the 

finding under Subtitle D. 

Unfortunately, under RCRA, that puts us in a bit of a complex 

situation. It means that we have a self-implementing rule. The 

Federal legislation can help address that. Let me give you a bit 

more context. 

By moving with Rule D under RCRA, we now have a waste that 

is a solid waste, not a hazardous waste. That means that States 

are in the primary role of regulating it. 

Unfortunately, the final rule does not really reflect some important State-specific considerations that a State program would have 

like looking at the hydrology, the underground soils, the topogVerDate Aug 31 2005 14:06 Aug 19, 2015 Jkt 000000 PO 00000 Frm 00033 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\95006.TXT VERN
30 

raphy, and what types of liners might be needed. States have 

unique elements of their programs that the Federal rule is unable 

to recognize. 

We would like to see a rule that can be delegated to the States 

like many other environmental programs are so that the States can 

implement the most stringent provisions, whether the Federal provision or the State provision, but there is a single regulatory system. 

Because of RCRA structure, we have a duplicative regulatory 

system. We now have the self-implementing Federal rule and then 

we have all the existing State programs. That is going to put the 

regulated facilities and actually the citizen groups in a bit of a complex quandary. They are going to have compare and contrast the 

existing State programs to the Federal rule, trying to figure out 

which ones are more stringent, which provisions should be followed 

and then look at citizen suits as an enforcement mechanism. 

We recognize that citizen suits play an important role, but we do 

think that States play an important role in enforcement as well. 

The structure of this rule really puts the States a bit on the sidelines. It puts the citizens in a good position but maybe not the best 

position given the expertise at the State level that will not be recognized by a citizen-driven enforcement mechanism. 

We really think that regulatory clarity is key in all environmental programs. Much of the litigation with which we are all familiar in the environment is because there is a lack of clarity. We 

need to know who is in the lead. Right now, we have a Federal program and State programs and it is not clear who is in the lead. We 

essentially have a duplicative structure. 

We feel the best way to move forward is to ask this committee 

to consider legislation to amend RCRA to allow State permitting 

programs to operate in lieu of the Federal program, but to incorporate elements of the Federal rule that are appropriate. 

Only through legislation can this occur. The House has moved 

forward, as you have heard, with a bill. We think their approach 

is generally workable and time is of the essence. There are a variety of approaches and we know this committee may be considering 

alternative approaches to the House. 

We are willing to work with you on that but the goal should be 

to eliminate a duplicative regulatory system. That is an important 

public policy goal. It benefits the communities, citizens, States, taxpayers and the public. 

Thank you very much. 

[The prepared statement of Ms. Dunn follows:] 

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Senator INHOFE. Thank you, Ms. Dunn. 

Mr. KEZAR. 

STATEMENT OF MIKE KEZAR, GENERAL MANAGER, SOUTH 

TEXAS ELECTRIC COOPERATIVE, ON BEHALF OF NATIONAL 

RURAL ELECTRIC COOPERATIVE ASSOCIATION 

Mr. KEZAR. Good morning. My name is Mike Kezar. I serve as 

the General Manager of South Texas Electric Cooperative or STEC. 

I appreciate the invitation to appear before the committee today on 

behalf of STEC and the National Rural Electric Cooperative Association to discuss the need for legislation to supplement EPA’s regulation of coal combustion residuals, CCRs. 

STEC is a non-profit electric cooperative that serves over 180,000 

rural members in 42 south Texas counties. NRECA is a national 

service organization dedicated to representing the national interests of cooperative electric utilities and the consumers they serve, 

including more than 900 not for profit rural electric utilities providing electricity to over 42 million people in 47 States. 

STEC relies on a variety of energy sources, including hydroelectric, wind, natural gas, and a lignite power plant located in 

Atascosa County, Texas called the San Miguel Plant. I am deeply 

familiar with the San Miguel lignite plant because prior to becoming the general manager of STEC, for 33 years I served in various 

capacities at San Miguel including 6 years as its general manager. 

The San Miguel power plant is a well-controlled power plant and 

has been a long and active participant in the development of CCR 

regulations primarily as a member of the Texas Coal Combustion 

Products Coalition. San Miguel has beneficially used CCRs for decades and continues to assess expanded use markets for CCRs. 

STEC supports the EPA’s decision to regulate CCRs as a nonhazardous waste under Subtitle D of RCRA in its CCR rule. There 

are two things, however, that EPA’s final rule did not accomplish 

in the end which warrant legislation as soon as possible. Stated another way, EPA’s rule needs a couple more tools in its CCR toolbox 

for its regulation of CCRs to be as effective and reliable as possible. 

First, regulatory certainty for CCR beneficial use markets is 

needed in the form of a legislative, non-hazardous determination to 

allay concerns that a hazardous determination could still be in the 

cards given that EPA’s final rule merely defers the question. 

Second, EPA needs the statutory clarity of new legislation to give 

EPA and the States the ability to oversee CCR management 

through federally approved State permit programs. Although EPA’s 

decision to regulate CCRs as non-hazardous was the right one, its 

decision to defer until a future date whether hazardous regulation 

might be pursued in the future leaves the CCR beneficial use market in a very uncertain posture. 

The risk of potential future hazardous regulation makes the type 

of capital investments necessary to maximize the beneficial use of 

CCRs very hard to justify, given the market disruption that would 

result from the stigma associated with hazardous waste classification down the road. Legislation that would establish as a matter 

of statutory law that regulation of CCRs will occur under nonhazardous authorities and that hazardous regulations are not on the 

41 

horizon would bring certainty to the beneficial use market and facilitate greater investments in beneficial use projects. 

In addition to the certainty the legislation can bring to beneficial 

use markets, legislation is also needed to fill key gaps in EPA’s current statutory authority so that it can implement a permitting program that will be much more comprehensive, science-based and enforceable than the current CCR rule. 

In contrast, the unprecedented nature of the current self-implementing model, a State and Federal permit approach like that utilized for municipal solid waste would allow EPA to both set the 

minimum standards and retain direct approval and enforcement 

authority while allowing for States to develop and implement riskbased environmental standards that are tailored to site-specific environmental conditions. 

Without legislation, facilities like San Miguel are left open to regulatory uncertainty and potentially extreme litigation costs. Under 

the current rule, nothing a State or even EPA says about a regulatory question that San Miguel might have will trump an ad hoc 

decision by a Federal district court judge in the context of a citizen 

suit. 

In every other environmental compliance program area, San 

Miguel can reliably turn to State or Federal environmental agencies to secure permits, work through highly technical risk management approaches and assure that it protects human health and the 

environment in a site-specific and reliable fashion. 

Every day that passes is another day closer to October 14, 2015, 

the effective date of the CCR rule. Already facilities like San 

Miguel are exposed to regulatory uncertainty for both beneficial 

use investments and compliance costs associated with EPA’s CCR 

rule. 

Please act soon so rural electric cooperatives can utilize and focus 

our limited resources on compliance rather than litigation defense. 

Thank you for the opportunity to appear before you today and to 

submit the more detailed comments and attachments that have 

been provided in writing to the committee. 

[The prepared statement of Mr. Kezar follows:] 

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Senator INHOFE. Thank you, Mr. Kezar, exactly 5 minutes. 

Mr. GRAY. 

STATEMENT OF DANNY GRAY, EXECUTIVE VICE PRESIDENT, 

CHARAH INC. ON BEHALF OF THE AMERICAN COAL ASH ASSOCIATION 

Mr. GRAY. Good morning, Chairman Inhofe, Senator Boxer and 

members of the Committee. My name is Danny Gray. I am Executive Vice President of Charah, Inc., one of the Nation’s leading 

managers of coal combustion byproducts. 

I also represent the American Coal Ash Association, ACAA, an 

organization that champions the beneficial use of coal ash as a 

preferable alternative to disposal. 

Thank you for the opportunity to testify regarding one of America’s best recycling success stories and how that success depends on 

regulatory certainty. There are few other issues where the environmental mission of this committee intersects so directly with its 

public works mission. By encouraging the safe and responsible use 

of coal ash in our Nation’s infrastructure, we reduce coal ash disposal while creating infrastructure that is more durable and environmentally sustainable. 

There are numerous reasons to view coal ash as a resource rather than a waste. Beyond the conservation advantages gained when 

using coal ash minerals to manufacture products, the products improve the quality of the finished product or goods such as highway 

pavements while reducing production cost. 

The environmental and performance benefits of coal ash utilization are most pronounced in the public sector projects. This sector 

consumes approximately one-third of all the concrete poured in the 

United States because coal ash improves the strength and durability of concrete. Its use has become ubiquitous in the construction 

of roads, bridges, runways, dams, water treatment facilities and a 

variety of other infrastructure projects. 

In 2011, a study by the American Road and Transportation 

Builders Association found without coal ash in the construction of 

transportation projects, the cost to build roads, runways and 

bridges would increase by an estimated $104.6 billion over 20 

years. 

These benefits are not limited to States where coal is mined or 

consumed to generate electricity. For instance, California was an 

early adopter and a leader in the use of coal ash in concrete public 

works projects, despite the fact that no concrete specification quality coal ash is produced in the State. 

Caltrans requires the addition of coal ash in concrete pavement 

in order to mitigate reactive aggregates and improve the long-term 

durability of the concrete. California’s ash is supplied by power 

plants in Arizona, Utah, Wyoming and as far away as Texas, all 

by rail. 

Charah and ACAA appreciate EPA’s final decision to regulate 

coal ash as a non-hazardous material. We believe this decision puts 

science ahead of politics and helps clear the way for beneficial use 

to begin growing again. 

However, we are painfully aware that EPA has made the final 

coal ash decision before only to reverse the course in the future. A 

129 

hazardous versus non-hazardous debate occurred prior to the agency’s 2000 final regulatory determination which 8 years later turned 

out to be not so final. 

Additionally, the 2015 rule’s preamble states that the rule defers 

to final Bevill determination. We feel that 34 years of study, two 

reports to Congress, two formal regulatory determinations and a 

final rule issued after 6 months in a rulemaking process all confirming that coal ash does not warrant hazardous waste regulation 

should be enough to declare the issue resolved and make the final 

rule truly a final decision. This would provide the long term certainty to the beneficial use industry that science says is warranted. 

Bills previously passed by the House of Representatives and H.R. 

1734 now under review would resolve this issue permanently. 

These bills would put primary enforcement responsibility and authority in the hands of professional State regulators and create 

new authority for EPA to step in if States do not do their jobs. 

In conclusion, despite the changing landscape in American electricity generation, our Nation will continue to produce large volumes of coal ash for the foreseeable future. Decades of ash storage 

represent a future opportunity to reclaim valued mineral resources 

for beneficial use if proper regulations are in place. 

Developing the capability to use more coal ash requires investment in processing facilities, ash storage and distribution facilities 

and transportation assets. Attracting the necessary investment requires real long term final regulatory certainty that legislation can 

provide. 

It is important to keep beneficial use at the forefront of U.S. coal 

ash management policy to ensure we utilize this unique mineral resource in building more durable infrastructure. The best solution 

for coal ash disposal problems is to quit throwing it away. 

The best roads, bridges, runways and dams are built with coal 

ash as an ingredient. Here we have the opportunity for a true winwin for America’s environment and public works. 

Thank you. 

[The prepared statement of Mr. Gray follows:] 

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Senator INHOFE. That is an excellent statement. Thank you, Mr. 

Gray. 

I assume you think they made the right call on the determination of non-hazardous when they made that determination? 

Mr. GRAY. Yes. 

Senator INHOFE. You spent a lot of your time talking about 

transportation infrastructure. It could not be more timely here and 

now, because we are now marking up on the 24th, next week, the 

transportation reauthorization bill, a 6-year and very extensive bill. 

I look at that and at the statement you just made. You already 

talked about the importance of coal ash in road and infrastructure 

projects. If you are talking right now about contracts starting to be 

let, could this be a problem if this changed and they were not able 

to use the coal ash as it is being used today? Could this affect people making determinations right now on contracts? 

Mr. GRAY. It could. As we all know, coal ash is a substitute for 

cement in the manufacture of ready mix concrete. It is exempted 

under the current rules under Subtitle D. 

However, the State DOTs have a certain amount of uncertainty 

right now in terms of the reliability of supply going forward and 

whether or not sufficient quantities of good quality coal ash will be 

available. They view it as a resource. Coal ash was used in the 

manufacture of concrete for many, many years prior to the environmental benefits being recognized. 

Senator INHOFE. You also mentioned some of the discussions in 

the House would rectify that, would take out some of the uncertainty, correct? 

Mr. GRAY. Yes. 

Senator INHOFE. Tell us the challenges States are expecting to 

have? We are talking about October as a date. Is that going to be 

enough time? What kind of problems will there be because you are 

rushing into something that is unknown at this time? 

Ms. DUNN. Under the final rule, States need kind of a workaround. Because the program cannot be delegated, they are asked 

to open up and amend their State’s solid waste management plans, 

reference the final rule in the State’s solid waste plans, and get 

those approved by EPA. 

There is really no process in place for that. We are not sure how 

long it would take the agency to do that. We also do not know how 

long it would take States to actually go through the process of updating their State solid waste management plans. 

If we follow the process in the rule, we are probably looking at 

a year to 18 months to get to final approval by EPA. That is why 

we believe a program that would allow things to be delegated to 

the States through a permitting program is a more effective use of 

probably the same amount of time. 

It would take States about 18 months to put a new permitting 

program in place, but instead of having this kind of shaky foundation of an EPA approved State plan, which has no legal standing 

at all, you would have an actual delegated State implemented program which is much more sound. 

Senator INHOFE. Mr. Kezar, under the current law, the EPA does 

not have the authority to approve State permitting programs for 

180 

coal ash disposal and the technical requirements in the EPA’s rules 

are enforceable only through citizen suits. 

Do you think this makes sense or would it be better for electric 

utilities and coops if Congress enacted legislation to address this? 

Is this addressed in what is being proposed in the House right 

now? 

Mr. KEZAR. To answer your question, yes, it would be very desirable for the coops and the utilities to have that certainty. It is my 

understanding that is being addressed in the House bill. 

The concern we have is, although as Alexandra said, States will 

submit their solid waste management plan to EPA for review and 

approval, that still does not allow the State to operate a permitting 

program in lieu of the Federal guidelines. It creates a situation 

where you have potentially duplicative and possibly conflicting 

oversight at the Federal and State levels. 

We believe the program that exists under all other regulatory environmental schemes whereby the State submits a plan, EPA approves it and then the State implements that program in lieu of 

the Federal program, the EPA establishing the minimum requirements, is far preferable. 

Senator INHOFE. Last, Mr. Gray, your organization does represent interests of the recycling industry. Tell me what would happen to the recycling industry in the event they change that from 

non-hazardous to hazardous? 

Mr. GRAY. In order to have access to raise money for capital to 

invest in the projects to enhance and grow the recycling side of the 

business, we need certainty and we need the material to be labeled 

properly as a non-hazardous material. 

For us, the key is being able to make long-term investments in 

order to get the assets, the processing equipment in order to make 

ash usable in concrete, and process that ash if necessary for these 

long term contracts and long term investments. 

Senator INHOFE. We hear the term uncertainty quite a bit up 

here. This is one of the problems out there with a lot of the rules 

and regulations. 

Senator Boxer. 

Senator BOXER. I ask unanimous consent to place in the record 

a letter from 290 public interest groups led by the nurses who support the rule who oppose the House bill that a lot of you have mentioned. 

Senator INHOFE. Without objection. 

[The referenced information follows:] 

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Senator BOXER. Thank you. 

Mr. Gray, you are absolutely right. In California, we really want 

to use this coal ash and we use it. What we do not want in our 

State is to see this, we do not want to see the ash stored in a way 

where it can explode and be like a landslide and have someone 

open their front door and this is what they see. I know you do not 

want it either. I know that. 

The question is, how do we assure that this never happens? 

Duke Energy said they would do the right thing. They did not do 

the right thing. It is most unfortunate and now there is a criminal 

probe, am I right, Mr. Holleman? 

Mr. HOLLEMAN. That is correct. 

Senator BOXER. I do not want to see that. I would say, Mr. Kezar 

and Ms. Dunn, I do respect your view with the duplicative situation. I have asked my staff, this is really not that different from 

so many other laws where we do not have time to talk to you about 

it. 

Whether it is the Clean Water Act or the Safe Drinking Water 

Act, there are minimum Federal standards. We love it if the State 

wants to go further. I would love to work with you. If you want to 

talk about permitting, I would be happy to work with you to make 

that fix if necessary. 

Ms. Cave, in your testimony, you describe how the unlined coal 

ash ponds at the power plant in your community had been leaking 

arsenic into the groundwater and was a threat to the Waccamaw 

River which supplies drinking water to you and your neighbors. 

What was the reaction of your community when they found out the 

coal ash pond was leaking arsenic into your drinking water supply? 

Was the call for the power company to remove the coal ash ponds 

from the river bank supported by the entire community? 

Ms. CAVE. To say the least, when we learned that the coal ash 

was leaking arsenic, there was great concern. I get my drinking 

water from the Waccamaw River. It was an education. As people 

became educated as to what was happening, they became first 

greatly concerned, and then angry. Why would the State-owned 

utility endanger its own customers? Why haven’t they done anything and why didn’t the State do anything to stop this? 

Senator BOXER. I am going to interrupt you because of time. I 

am assuming you support the part of the rule that says there has 

to be public disclosure? 

Ms. CAVE. Absolutely. 

Senator BOXER. It is really important for the people who are supporting the House bill. They do not allow public disclosure. It is 

very complicated. That is something I would hope we could all 

agree on. 

If my kid is living along a river and arsenic is in there or lead 

and can damage their brains, I would sure like to know. 

Mr. Holleman, during the rulemaking process, EPA confirmed 

157 cases where coal ash disposal has caused damage to peoples’ 

health and the environment. EPA expects that additional damage 

cases will be identified in response to the installation of groundwater monitoring required under the rule. 

You have looked at a lot of coal ash disposal sites. What does 

monitoring data at coal ash sites show regarding contamination? 

192 

Mr. HOLLEMAN. It shows shocking levels of contamination that 

the community becomes very concerned about once they learn 

about it. As Nancy pointed out, right in the center of Conway, right 

next to the city marina, the levels of arsenic in the groundwater 

have reached 300 times the legal limit. 

In North Carolina, just recently, the State has begun testing all 

the drinking water wells around these coal ash sites. Over 90 percent of the people who have been using these wells for years have 

now been told to stop drinking their water. 

Senator BOXER. I am going to stop you there. You believe as this 

monitoring continues, we are going to find more problems in these 

communities? 

Mr. HOLLEMAN. Yes, and that is what we have seen over the last 

4 years. 

Senator BOXER. Any effort to stop that is a strike against our 

families, in my opinion. This is not about Democrats or Republicans. This is about our families. 

My last question is to you, Ms. Dunn. As an adjunct law professor and an attorney, you have written and taught on the subject 

of environmental justice. In their comments to EPA on the proposed coal ash rule, environmental justice organizations noted that 

70 percent of coal ash dumps are located in low income, disadvantaged communities. 

Do you agree these communities deserve to know if coal ash 

ponds are leaking toxic substances into their drinking water? Do 

you think they have the right to know what is in their drinking 

water? Why would you support a House bill that really limits the 

right to know? 

Ms. DUNN. We absolutely support transparency and are working 

very hard with EPA to look at data bases. I believe requirements 

in the rule would have Internet posting of this type of information. 

Senator BOXER. The rule is fine. You say you support the law in 

the House. 

Ms. DUNN. Generally. 

Senator BOXER. You generally support. I hope you will go after 

the parts because you have lived your life fighting for environmental justice. People need to know. 

Ms. DUNN. State regulators believe in transparency. 

Senator BOXER. I am glad they do but this bill limits the right 

to know. That is outrageous. I do not care who you are or what side 

of the issue you are on. 

Thank you. 

Senator INHOFE. Senator Fischer. 

Senator FISCHER. Thank you, Mr. Chairman. 

Ms. Dunn, I certainly agree with you when you talk about the 

States being very diverse and very unique. Even within States, 

there is such diversity that I believe the best solutions are made 

at the local level, at the State level, because they understand that 

uniqueness within their own boundaries. 

I also agree with your comment that this now puts States on the 

sidelines because the citizen suits are the only mechanism that is 

provided for enforcement of the rule. 

193 

Could you please go into more detail on the potential impact 

these suits would have for utilities, for agencies, but ultimately on 

American families. What is the impact there? 

Ms. DUNN. I believe that we really need to think about how we 

are spending our resources. We heard from the witnesses that citizen groups can bring concerns of the community to regulatory 

agencies’ attention. That is fully appropriate. 

Then I think we need to think about what is the best way to resolve those concerns. State regulators have the ability to work collaboratively with industry, to work in a less collaborative way, a 

more enforcement-oriented way. But this rule takes that power sort 

of away and really puts it in the role of pure citizen suit, leaving 

the State expertise on monitoring, on gathering information on the 

science and on what type of technical requirements would make 

sense for that facility to add the protection the citizens want. 

The State becomes a side player as opposed to a primary player. 

We believe if the States could take the technical requirements of 

EPA’s rule as the minimum standards, as they often do in Federal 

programs that are delegated, add the State specific requirements 

that are more intense or stringent for the special State conditions, 

we can then have a very good, effective program. 

States already have effective programs. Now what we have is an 

overlaying Federal program with the only enforcement in EPA’s 

own words being by citizen suits. It is an odd structure. 

Senator FISCHER. I think there would be more accountability and 

more transparency at the State level as well. When you have a government that is closer to the people and to be able to be on the 

ground and be available for citizens, I just think we would be able 

to have more accountability. Do you agree with that? 

Ms. DUNN. I do, and we can always find the egregious cases, 

those who work in environment. There are always going to be those 

cases that surprise us, that show a lack of effectiveness of the existing regulatory system. 

The majority of the facilities in the Country, there are over 200 

of them in 33 States, are not having the catastrophic incidents we 

have heard a little bit about today. There will always be those that 

take us by surprise. 

Senator FISCHER. We need to address those. 

Ms. DUNN. We do need to address them. I do not think we are 

saying that we should not. It is a failure on all parts, Federal, 

State and the citizens to have those incidents occur. I do not think 

that means that States are incapable of effectively regulating these 

facilities well and at the ground level. 

Senator FISCHER. Thank you. 

Mr. Gray, you talked about recycling of coal ash. Can you explain 

the effects on the willingness of customers to use that coal ash in 

their products if we do not have certainty on how the EPA is going 

to classify it? 

Mr. GRAY. Certainly customers that use ash are cognizant of 

whether people refer to it as hazardous or non-hazardous and the 

negative image that would come with using the hazardous. 

We all know using fly ash in concrete is one of the best places 

you could put it, regardless of what label you place on it. That is 

the best place you can put fly ash because it improves the quality 

194 

of the concrete, it saves the customers and the citizens of the 

United States money because concrete is less expensive for everyone. 

Senator FISCHER. Mr. Kezar, when you talk about the utility and 

the challenges you face there, when we are not seeing that certainty with the decision made by the EPA on if this is a hazardous 

or non-hazardous material, what is the economic impact of that? 

How is that going to impact utilities? 

In Nebraska, we happen to be 100 percent public power. As citizens of the State, we are affected by the impact on the utility. We 

are also impacted as taxpayers and as citizens, as consumers. How 

are we going to make sure that utilities can have reliable and affordable electricity when there is so much uncertainty out there? 

Mr. KEZAR. As public power, electric coops do not have a profit 

motive, so our concern is providing reliable and affordable power 

to our members, many of whom are below the poverty level or on 

fixed incomes. San Miguel entered into a partnership with Boral, 

one of the members Mr. Gray would represent, to install and at 

Boral’s capital cost, facilities to classify ash to be used for beneficial 

road projects throughout the State. Boral made that investment 

based upon their understanding of the rules as they went forward. 

The Texas Department of Transportation tested the ash based 

upon their understanding of the rules as they existed and entered 

into use of that ash on road projects. A change in classification 

would put a chill on both of those entities, I would think. 

From a personal perspective, as the manager of a facility, I 

would feel very uncomfortable managing a product outside the facility that later would be determined to be hazardous. That would 

give me a great deal of concern. It would be a problem. The safer 

course, quite honestly, would be to dispose of it locally rather than 

beneficially reuse it. 

Senator FISCHER. Of course the question is, what do you do with 

it? My time is up but that is the looming question out there. If we 

are not able to make good use of a non-hazardous product that is 

beneficial, what happens? 

Thank you. 

Senator INHOFE. Thank you, Senator Fischer. Senator Markey. 

Senator MARKEY. Thank you, Mr. Chairman. 

The lack of a uniform Federal standard requiring the safe disposal of coal ash has resulted in over 200 cases of water contamination in addition to major, major spills. For the first time, the EPA 

has issued a Federal rule that would govern the disposal of toxic 

coal ash, after a 5-year long, stakeholder process, EPA has issued 

a rule that would be put in place in October of this year. Although 

the EPA rule is not as robust as what I or many others would have 

liked, it does, for the first time, create a Federal standard to protect human health and environment. 

Mr. Gray, you testified in support of the House bill that would 

give enforcement responsibility and authority over coal ash disposal to the States. Is it not true that under the House proposal, 

household waste could be regulated more stringently than coal ash 

in some or all States, since there is an existing Federal floor on 

how stringently household waste should be regulated, but the 

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House bill does not have a Federal floor for how stringently coal 

ash waste should be regulated? Is that not accurate? 

Mr. GRAY. The House bill incorporates the EPA minimum standards and would basically establish the same sets of national guidelines for managing coal ash. Those standards would apply as a part 

of the House bill if it were passed. 

Senator MARKEY. But there is no uniform enforcement, Mr. Gray. 

Mr. GRAY. The bill we are supporting would give the enforcement 

to the States and would give EPA the right to step in, which is not 

there under Subtitle D as of today. It would give the EPA additional power to step in and take over if the States did not enforce. 

We feel the enforcement is sufficient. 

Senator MARKEY. Mr. Holleman, do you agree with that? 

Mr. HOLLEMAN. No, Senator, of course I do not agree with that. 

Senator MARKEY. Make the case, Mr. Holleman. 

Mr. HOLLEMAN. The whole point of the House bill from the industry viewpoint is to eliminate or weaken those national standards and leave it to the States who have in the past simply refused 

and failed to effectively enforce the law to the extent that one of 

the State agencies has been investigated by a Federal criminal 

grand jury. 

As you say, the new rule does not go as far as it might have, but 

at least it puts in place some minimum national standards which 

we are familiar with in virtually every area of the economy. This 

would not be unique or anything different. 

The States then are free to expand on it, as Senator Boxer said, 

and enforce their own rules that are in excess of these rules if they 

want to. 

Senator MARKEY. A company in central Illinois used coal ash to 

fill a ravine for a decade ending in 2005. Runoff draining and 

leaching from the ash-filled ravine contaminated nearby drinking 

water wells with arsenic, chromium, lead and other toxic chemicals. Is it not true that there is nothing in the House bill that 

would prohibit disposal of coal ash directly into drinking water 

aquifers? 

Mr. HOLLEMAN. Yes, it is my understanding in the last version 

of the House bill, prohibition in the EPA rule was taken out. In 

South Carolina, as Nancy Cave pointed out, we had one situation 

where the coal ash is 18 feet into the groundwater. 

Senator MARKEY. For each witness, do any of you disagree that 

coal ash should be prohibited from being dumped into drinking 

water sources? Do any of you disagree with that? Let the record 

show that no one does disagree. 

Ms. Dunn, your testimony states that the EPA rule will result 

in a duplicative program because States already have effective programs for managing coal ash residuals. However, EPA found in its 

2015 regulatory impact analysis for this rule that 18 of the top 34 

coal ash-generating States have none of the basic pollution control 

requirements for coal ash ponds contained in EPA’s rule. Do you 

disagree with this EPA finding? 

Ms. DUNN. I would assume that EPA’s finding is accurate. We 

support the setting where States would fold the Federal standards 

into a State program. We are supporting the States upgrading their 

196 

existing programs. Some State programs exceed the technical requirements. 

Senator MARKEY. Is it true that the State of Tennessee, home of 

the legendary breach of coal ash disposal pond that released 1.1 

billion gallons of toxic coal ash sludge that literally buried more 

than 300 acres and filled nearby waterways, still does not regulate 

coal ash ponds? 

Ms. DUNN. I am not able to talk exactly to the State of Tennessee’s regulations but I would be happy to get back to you on 

those. 

Senator MARKEY. Mr. Holleman, do they regulate, Tennessee? 

Mr. HOLLEMAN. Tennessee did not put in place any new rules for 

its coal ash lagoons. In fact, we just have had a proceeding ourselves in Tennessee where, after we sent a 60-day notice on the 

Clean Water Act, the Tennessee agency had to admit that TVA is 

now and has been for years violating other Tennessee laws at Gallatin, and the State agency has not done anything to stop it. 

Senator MARKEY. In the town of Pines of northern Indiana, hundreds of thousands of tons of coal ash was used to landscape peoples’ backyards. EPA found that the coal ash leached arsenic and 

other heavy metals into drinking water wells. 

Mr. Holleman, if we eliminated EPA’s rule, would States be required to ensure that coal ash could not be used to landscape peoples’ backyards in ways that threaten drinking water? 

Mr. HOLLEMAN. No, sir, that is another problem. As some of the 

witnesses have pointed out, it can be a good thing to use coal ash 

in concrete, but you do not want it scattered across the landscape 

in unlined fill. 

That is what we have seen threatened around the Country and 

actually occur in places like the instance you point out. There is 

a golf course in Virginia where there was a catastrophe as well. 

Senator MARKEY. Thank you. 

Mr. Chairman, I thank you. 

Senator INHOFE. Thank you, Senator Markey. Senator Capito. 

Senator CAPITO. Thank you. 

I thank the witnesses for being here. I thank the Chair and 

Ranking Member as well. 

Mr. Kezar, if you are a rural electric utility, I am assuming you 

have sited or at least some of the members of the national have 

sited coal ash impoundments or lagoons or whatever before. That 

is the usual process for a coal-fired power plant, correct? 

Mr. KEZAR. Depending on the type of facility, we do not have lagoons as they have been discussed today. We do not. 

Senator CAPITO. But your other members would? 

Mr. KEZAR. Other members would, yes. 

Senator CAPITO. I would imagine that the intent of siting one of 

these lagoons is not to leach arsenic into drinking water. I do not 

think anybody has that as a goal or certainly as a result. 

Mr. KEZAR. No, ma’am. 

Senator CAPITO. Maybe I should direct this question to Ms. Dunn 

since she is overseeing and working with all the different State regulators. What other processes or other regulators would come into 

play? 

197 

I am from a coal State. We have coal ash lagoons, I am sure. I 

think there are 404 permits, the EPA, the DEP State regulator and 

the Corps of Engineers who are in on all this. Do all these other 

agencies interplay as you are looking to site a coal ash impoundment? Am I correct in assuming that? 

Ms. DUNN. You are correct. There would be a lot of interaction 

between different agencies on siting a new facility. The EPA rule 

has now requirements for where those facilities can be sited that 

will make future sitings much more selective than they were in the 

past. That is part of the evolution of our environmental regulatory 

system. We will be making better decisions in the future. 

Senator CAPITO. Based on the rule that was just moved forward? 

Ms. DUNN. Yes. 

Senator CAPITO. Would that change under the House bill, in your 

opinion? 

Ms. DUNN. In our opinion, the House attempted to take the good 

technical work of the EPA rule and allow States to have it delegated to operate as a State program in lieu of the Federal program. 

As EPA’s own fact sheet says, no matter what they can do under 

the existing law, they do not have the statutory authority to let the 

State program operate in lieu of the Federal program. We are going 

to have two programs. 

You all work on a lot of environmental programs and that is 

something we generally try to avoid, overlapping and duplicative 

regulation, given the lack of resources at the Federal level and the 

State level. 

Senator CAPITO. Mr. Gray, we go to all kinds of celebrations, so 

I was celebrating the 50 year birthday of a dam in West Virginia. 

I was really amazed to find many, many years ago it was constructed with coal ash. It is still very fortified and has the beneficial uses that I think we have all acknowledged, whether transportation, dams or new construction and those kinds of things. 

If this were to move forward and coal ash could not be recycled, 

what would we do with the 50 percent of the coal ash that is recycled? Is that an accurate figure? What would we do? This would increase the size of these ponds and maybe could hazard more danger, I would imagine. 

Mr. GRAY. Yes, if you are not utilizing it, you are going to be disposing of it, so it is going to end up in landfills, is where it will 

end up. The case that you cite of using ash in a dam, concrete that 

goes into dams needs to utilize coal ash because it gives it unique 

characteristics. It slows down the set of hydration as an example. 

When you talk about mass pours in dams, a common structure, 

you actually need the value of the fly ash specifically for that purpose, to avoid cracking of the concrete. As we all know, cracks in 

dams are not good to have, so it has a unique performance additive 

for that reason. We would need that product going forward or we 

would have to manufacture some product to take its place. It is one 

of those cases where the byproduct actually serves an excellent performance method. 

Senator CAPITO. Let me ask one final question, a chemistry sort 

of question. We have thermal coal, we have metallurgical coal. Is 

all fly ash created equal or are there more that maybe have arsenic 

properties or other properties? Do you know the answer to that? 

198 

Mr. GRAY. Any chemicals or trace elements that happen to be in 

the coal usually transition into the ash. In general, that is a true 

statement, so slightly different. 

Senator CAPITO. It would be according to where the coal is coming from, is it lignite or something else that would have different 

characteristics? 

Mr. GRAY. That is correct. 

Senator CAPITO. Some more hazardous than others? 

Mr. GRAY. Correct. 

Senator CAPITO. Thank you. 

Senator INHOFE. Thank you, Senator Capito. Senator Carper? 

Senator CARPER. Welcome. I am a native of West Virginia who 

learned to fish at Bluestone Dam right on the New River. 

One of the things I think is attractive about the regulation the 

EPA is proposing is they chose not to classify this substance as a 

toxic substance. Rather, the idea is to make it non-hazardous so 

that we can actually use it for recycling purposes. I co-chair with 

Senator Boozman the Senate Caucus on Recycling, so we are excited about the idea to continue being able to recycle whether it is 

dams in West Virginia or projects in other States. 

I have a question for Mr. Holleman and Ms. Cave. Ms. Dunn 

mentioned in her testimony that States are ‘‘familiar with the devastating environmental property and human health impacts coal 

impoundment releases can cause. However, in the past decade we 

have seen devastating coal ash spills such as the Duke spill in 

North Carolina and the TVA spill in Kingston, Tennessee, partly 

because the States were not doing their part to protect public 

health.’’ 

I speak as a recovering Governor for the State of Delaware, a 

former chairman of the National Governors Association and have 

huge respect for the States, Governors and others. 

How does the EPA regulation ensure States do the minimum to 

ensure that coal ash impoundments are safe? If this regulation 

were to be voluntary for States or removed altogether, how would 

that be different than before the final rule where we saw some of 

the devastating spills I alluded to? 

Mr. HOLLEMAN. First of all, let me say about recycling, there is 

not one word in this EPA rule that prevents or hinders in any way 

the recycling of ash for concrete. 

Senator CARPER. That is good. 

Mr. HOLLEMAN. In all the cases we worked on, we have reached 

agreements that encourage, allow and foster that. That is a total 

red herring issue. 

On the question you asked, I am from South Carolina. I understand the issue of States’ rights. We once had an official name, 

States’ Rights, in our State, so I understand that concept. 

I also have to live in the real world of communities and people 

and neighborhoods of all types. The reality is that the State agencies are very reluctant and will not enforce the law we have seen 

by themselves against the most politically powerful and wealthy institutions in the State legislative capitals, which are these utility 

monopolies. 

Senator CARPER. Hold it right there. Thank you, sir. 

Ms. Cave. 

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Ms. CAVE. I think what is so important about the EPA rule for 

an organization like mine is the absolute necessity of information, 

because it is the people who must be able to make the decision as 

to what they want the utility to do with the coal ash that is sitting 

in lagoons. 

I think information and protective action are important. South 

Carolina is in the process of trying to get rid of the law that allows 

the right of personal action. If we do not have that in EPA law, 

then we cannot get that coal ash out of the lagoons. 

Senator CARPER. Thank you. 

I have another question for Mr. Holleman and Ms. Cave, a brief 

answer as well. Do you feel that the EPA rule is a compromise between industry and the environment and health community? 

Mr. HOLLEMAN. Yes, it is definitely a compromise. It did not have 

everything we wanted in it, but at least it gives every community, 

that does not have a nonprofit group fighting for them, some basic 

protection for their clean water in their community. 

Senator CARPER. Thanks. 

Ms. Cave. 

Ms. CAVE. I would agree. I feel this final rule is something that 

must be maintained and not diminished. It is a tool which we can 

use to keep our citizens safe. I personally cannot trust my State to 

do that for us. 

Senator CARPER. Thank you. 

Ms. Dunn, in your testimony, you expressed concerns about coal 

ash being regulated as a non-hazardous substance under Subpart 

D of RCRA. Do you have the same concerns for other non-hazardous substances? Do States have trouble implementing Subpart 

D of RCRA as a whole? If not, why is coal ash different than other 

non-hazardous substances? Please be brief. 

Ms. DUNN. Briefly, States are very capable of regulating non-hazardous wastes. They do so under many programs, so I do not think 

we have a problem managing the coal ash facilities. We are willing 

to step up to the plate; we are willing to raise our game to include 

these Federal requirements. 

I think the most important thing is EPA’s own statement where 

it says under RCRA as currently drafted, EPA has no formal role 

in implementation nor can it enforce the requirements. When have 

we heard a Federal agency put out a final rule that states in black 

and white that it cannot enforce or implement? 

It is a creature of the statute right now. That is why we are before you hoping that we can reconcile the fact that EPA and the 

States are somewhat left ineffective because we made the non-hazardous determination which was the right determination. 

Senator CARPER. Thank you. 

We have another hearing going on in the Homeland Security 

Committee and I am bouncing back and forth, so I cannot stay for 

long. I very much appreciate your being here. This is an important 

issue. We appreciate your input. 

Thank you, Mr. Chairman. 

Senator INHOFE. Thank you, Senator Carper. 

Senator Rounds. 

Senator ROUNDS. Thank you, Mr. Chairman. 

200 

Mr. Kezar, in South Dakota, we have one coal-fired plant, the 

Big Stone plant, that disposes of coal ash in South Dakota. For 

more than three decades, this plant and the State of South Dakota 

have responsibly managed the disposal of coal combustion residues 

by recycling most of it while disposing of some CCR in a dry tomb 

landfill. 

However, EPA’s rule establishes a minimum, one size fits all 

standard for the operation of coal ash disposal and management facilities. I am concerned this approach does not take into account 

the various factors involved in coal ash disposal at different facilities across the Country. 

Do you have examples in your area or are you aware of examples 

of any of the standards that do not make sense for your coop compared to ones that might operate in other parts of the Country? By 

that, I mean does it make sense to require a composite liner for 

landfills in places like our area where compacted clay liners are the 

norm? 

Mr. KEZAR. Yes, I do have some examples. By the way, I am a 

native South Dakotan, so I am familiar with the facility and disposal. 

We have heard some discussion about coal ash being placed near 

drinking water aquifers. Just to look at the situation at San 

Miguel, we dispose of ash, ash that we cannot recycle. It is placed 

in pits within the adjacent surface mine. 

The closest drinking water aquifer is over 2,000 feet below the 

surface of the land. We live in an area where the hydrology, the 

shallow aquifers are very saline and are not usable. That is a very 

different situation. The likelihood that ash is ever going to get into 

a drinking water aquifer is almost non-existent. 

In addition, the native soil is high clay content. It has been tested by the State environmental quality agency and that native soil 

is actually less permeable than the requirements for a compacted 

clay liner. 

As you mentioned, requiring a composite liner in that type of setting just would not make any sense. That is why we support the 

EPA setting minimum guidelines that the State then would implement in a permitting program. 

The State has the technical expertise and the site specific knowledge to work on a permit that takes into account those different 

circumstances for the different areas where the permits are being 

granted. 

Senator ROUNDS. I will followup with this. In the preamble to the 

final rule, the EPA says its approval of revised State solid waste 

management programs will signal the State program meet minimum Federal standards. 

In South Dakota, the State has had a strong solid waste program 

in place for decades. Accordingly, the Big Stone coal plant complies 

with all of the State regulations for CCR disposal. I would express 

concern about the impact citizen suits could have on the States’ 

ability to regulate coal ash disposal. 

Under the EPA rule, if a facility is operating in accordance with 

the State program, will that protect it from citizen suits? 

201 

Mr. KEZAR. No, because under the rule, the State program will 

not be able to be implemented in lieu of Federal guidelines. The potential Ms. Dunn mentioned is still there. 

Senator ROUNDS. Thank you. 

Mr. Holleman, you testified about the importance of protecting 

the ability of citizens to file lawsuits to enforce EPA’s coal ash rule. 

Does the bill currently under consideration in the House, H.R. 

1734, contain a savings clause that incorporates the RCRA citizen 

suit provision without any change? 

Mr. HOLLEMAN. That is true. The original proposal did not. We 

testified over there and they put that provision in. The way you gut 

something like that is you reduce the standards that are to be enforced so that the right of enforcement does not have much meaning anymore. 

You can still keep the right of enforcement, but if the standards 

are not meaningful to be enforced, then you have just played a legislative shell game. That is what we are concerned about. We want 

to have adequate minimum standards that the citizens can enforce 

if the bureaucrats do not. We want the combination of the two. 

Senator ROUNDS. Would you care to comment? 

Ms. DUNN. I think we may in some ways be talking past each 

other because we also agree there are some very good minimum 

standards in the Federal rule. We also agree there needs to be 

some flexibility that Congress can provide, and a little flexibility 

for the States to adapt and maybe change some of those liner requirements. 

It could be perceived as a rollback but really it should be perceived as a site specific application of a national standard to the 

local conditions. We are not advocating taking away elements of 

EPA’s rule in any way. 

Senator ROUNDS. Thank you. 

Thank you, Mr. Chairman. 

Senator INHOFE. Thank you, Senator Rounds. Senator Boozman? 

Senator BOOZMAN. Thank you, Mr. Chairman. 

I really just have a question for you, Mr. Kezar. Given the mission and customer base for rural co-ops and public power producers, tell me about the timeline. Do you think the timelines in 

the EPA rule are reasonable as far as being able to be met? 

Mr. KEZAR. I think Ms. Dunn testified earlier that it is going to 

be very, very difficult. We will have to make our best guess, step 

out. We are already expending funds now in anticipation of what 

is going to be coming, but the timelines are very, very challenging. 

Senator BOOZMAN. Can you comment also, Ms. Dunn? Because I 

think this is very important. It does not matter which side of the 

issue you are on, this is a practical thing that has great impact to 

reliable electricity. 

Ms. DUNN. Absolutely, Senator. What States have to do right 

now is operate on two pathways, not knowing what will happen 

with the House and Senate. They are moving forward now to assess and opening up their State solid waste management plans, 

going through that process and investing the resources in that. 

That whole process could play out over some time without legislative intervention. That same time and State energy could be 

202 

spent working to implement an actual delegable State program 

with EPA. That would be a better use of the time. 

Senator BOOZMAN. Thank you, Mr. Chairman. 

Senator INHOFE. Thank you, Senator Boozman. 

Without any further members here, we are adjourning this meeting. I appreciate very much all five of you. It has been very enlightening and educational for me and I certainly think for the rest of 

us also. Thank you so much. 

[Whereupon, at 10:53 a.m., the committee was adjourned.] 

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