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September 14,2009

The Honorable Ray LaHood

Secretary

Department of Transportation

1200 New Jersey Ave, SE

Washington, DC 20590

Dear Secretary LaHood:

As the Ranking Members of the Oversight and Government Reform and

Transportation and Infrastructure Committees, we are writing to draw your attention to an

important issue - the Environmental Protection Agency's (EPA) effort to regulate coal

combustion byproducts (CCBs). We are concerned that designating coal ash, a CCB

frequently used in highway construction, as a hazardous waste could reduce the stimulus

impact of the American Recovery and Reinvestment Act'

By removing a key component of concrete from the market, EPA's actions could

increase the cost estimates of "shovel ready projects" that use concrete. This would

impair the stimulus impact of approximately $26 billion in federal funds dedicated to

highway construction. Accordingly, we are concerned that a designation by EPA that

CCBs arehazardous waste will have a negative impact on the Department of

Transportation's (DOT) effort to rebuild our nation's highways and bridges'

As you may know, EPA is strongly considering regulation of CCBs under subtitle

C of the Resource Conservation and Recovery Act (RCRA), which would designate

CCBs as"hazardous waste." Coal fly ash is a ftne, powdery CCB that is produced by

coal-f,rred electricity generators. It frequently substitutes for Portland cement because it

has many of the same characteristics and properties. According to EPA's own analysis,

approximat eIy 13.4 million tons of coal ash are used in concrete or cement production

annually.l

In addition to substituting for Portland cement, coal fly ash often offers a superior

product because it reduces chemical reactions, permeability, and improves concrete

itrength and durability when used in highway transportation projects. In fact, the Ronald

Reagan Building and International Trade Center facility in V/ashington, DC, and the new

I-35-bridge in Minneapolis, Minnesota, both contain laige quantities of coal ash'2

Jim Kavanau gh, Turning Toxic Coal Ash into Bridges, Buildings, CNN, March 20,2009, available at,

PRINTED ON RECYCLED PAPER
The Honorable Ray LaHood

September 14,2009

Page 2

Moreover, use of coal fly ash as a substitute for Portland cement in concrete

substantially reduces energy use in concrete manufacturing, with associated substantial

greenhouse gas emission reductions. In 2007, use of coal fly ash as a substitute for

Portland cement reduced energy use in concrete manufacturing by 73 trillion British

thermal units (BTUs), with associated greenhouse gas emission reductions estimated at

12.5 million tons of carbon dioxide equivalent.'

In preparation for regulation of coal ash under RCRA subtitle C, EPA has

solicited feedback from statãs on the development of regulations for CCBs,a In tum, state

regulators informed EPA that regulatory programs are already in place for the

management of CCBs and that regulation of CCBs as ahazardous waste is not

warranted.s

Many of the states also informed EPA that designation of coal ash as a hazardous

waste would effectively prohibit the beneficial use of coal ash in their state. In most

states, a primary requirement for a beneficial use determination is that waste not be

hazardous. For example, state laws in Florida, Iowa, Indiana, and Virginia all would

eliminate the possibility of using coal ash in cement immediately if EPA were to

designate it as a hazardous waste.Ó In other states, liability concerns would dramatically

lessen the use and availability of coal ash. Because a major component of concrete

would be effectively removed from the market place, producers and consumers of cement

would likely experience a tightening of supply. The government generated scarcity of a

key component of cement would then necessarily drive up the price of both Portland

cement, and related construction projects.

Because this regulatory action by EPA will have such a dramatic impact on your

agency's efforts to revitalize our nation's highways and bridges, we request that you

actively engage the EPA to ensure that these concerns are taken into account. Moreover,

we request that you respond to the following questions by no later than September 24,

2009.

3 Coal Combustion Waste Storage and llater Quality: Hearing beþre the Subcomm. on Waler Resources

qnd Environment, H. Comm. on Transportation and Infrastructure. I l lth Cong. (April 30, 2009)

(statement of Barry Breen, Acting Assistant Administrator, Office of Solid Waste and Emergency

Response, United States Environmental Protection Agency).

n Letter ÍÌom the Honorable Lisa Jackson, Administrator of USEPA to Mr. R. Steven Brown, Executive

Director, the Environmental Council of the States (March 9,2009).

t Mr.. Brian Tormey and Stephen Cobb to Mr. Matt Hale, Director, Off,tce of Resource Conservation and

Recovery, US EPA (April 1,2009).

u Letter from Thomas W. Easterly, Commissioner, Indiana Department of Environmental Management to

Mr. Matt Hale, Director of Resource Conservation and Recovery, U.S. EPA (April 9, 2009); Letter from

Brian Tormey, Chief Land Quality Bureau, Iowa Department of Natural Resources to Mr. Matt Hale,

Director of Resource Conservation and Recovery, U.S. EPA (March 19,2009); Charles F' Goddard, Chief

Bureau of Solid and Hazardous Waste, Florida Department of Environmental Protection to Mr. Matt Hale,

Director of Resource Conservation and Recovery, U.S. EPA (April27,2009).
The Honorable Ray LaHood

September 14,2009

Page 3

1. Has EPA formally or informally requested DOT to provide feedback andlor

analysis on how regulating CCBs under subtitle C of RCRA would impact your

agency's efforts to improve our nation's highways and bridges?

2. Has the Office of Management and Budget (OMB) formally or informally

requested feedback andlor analysis on how regulating CCBs under subtitle C of

RCRA would impact your agency's efforts to improve our nation's highways and

bridges?

3. Has DOT provided either EPA or OMB with an analysis of the impact of

regulating CCBs as ahazardous waste under RCRA? If so, please provide this

analysis.

4. Has DOT performed any analysis of how regulating CCBs as ahazardous waste

under subtitle C of RCRA would impact the disbursement of Recovery Act

Funds? Please provide the Committee with any such analysis. If not, please

explain.

5. Has DOT analyzedthe expected increased cost associated with a Federal policy

that would effectively prevent the use of coal ash as a substitute for Portland

cement? Please provide the Committee with any such analysis. If not, please

explain.

We thank you for your prompt attention to this important matter. If you have any

questions regarding this request, please contact Kristina Moore, Committee on Oversight

and Reform, at (202) 225-5074 or Jon Pawlow, Committee on Transportation and

Infrastructure, at (202) 225 -43 60.

Sincerely,

Ranking Member

Committee on Oversight

and Government Reform

Ranking Republican Member

Committee on Transportation

and Infrastructure

Danell E. Issa