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82–182 2013

H.R. lll, THE COAL ASH RECYCLING AND 

OVERSIGHT ACT OF 2013 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ENVIRONMENT AND THE 

ECONOMY 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

APRIL 11, 2013 

Serial No. 113–29 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

(II) 

COMMITTEE ON ENERGY AND COMMERCE 

FRED UPTON, Michigan 

Chairman 

RALPH M. HALL, Texas 

JOE BARTON, Texas 

Chairman Emeritus 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

JOSEPH R. PITTS, Pennsylvania 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MIKE ROGERS, Michigan 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

Vice Chairman 

PHIL GINGREY, Georgia 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BILL CASSIDY, Louisiana 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

CORY GARDNER, Colorado 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

GUS M. BILIRAKIS, Florida 

BILL JOHNSON, Missouri 

BILLY LONG, Missouri 

RENEE L. ELLMERS, North Carolina 

HENRY A. WAXMAN, California 

Ranking Member 

JOHN D. DINGELL, Michigan 

Chairman Emeritus 

EDWARD J. MARKEY, Massachusetts 

FRANK PALLONE, JR., New Jersey 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

JANICE D. SCHAKOWSKY, Illinois 

JIM MATHESON, Utah 

G.K. BUTTERFIELD, North Carolina 

JOHN BARROW, Georgia 

DORIS O. MATSUI, California 

DONNA M. CHRISTENSEN, Virgin Islands 

KATHY CASTOR, Florida 

JOHN P. SARBANES, Maryland 

JERRY MCNERNEY, California 

BRUCE L. BRALEY, Iowa 

PETER WELCH, Vermont 

BEN RAY LUJAN, New Mexico 

PAUL TONKO, New York 

(III) 

SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY

JOHN SHIMKUS, Illinois 

Chairman 

PHIL GINGREY, Georgia 

Vice Chairman 

RALPH M. HALL, Texas 

ED WHITFIELD, Kentucky 

JOSEPH R. PITTS, Pennsylvania 

TIM MURPHY, Pennsylvania 

ROBERT E. LATTA, Ohio 

GREGG HARPER, Mississippi 

BILL CASSIDY, Louisiana 

DAVID B. MCKINLEY, West Virginia 

GUS M. BILIRAKIS, Florida 

BILL JOHNSON, Missouri 

JOE BARTON, Texas 

FRED UPTON, Michigan, ex officio 

PAUL TONKO, New York 

Ranking Member 

FRANK PALLONE, JR., New Jersey 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

JERRY MCNERNEY, California 

JOHN D. DINGELL, Michigan 

JANICE D. SCHAKOWSKY, Illinois 

JOHN BARROW, Georgia 

DORIS O. MATSUI, California 

HENRY A. WAXMAN, California, ex officio 

(V) 

C O N T E N T S 

Page 

Hon. John Shimkus, a Representative in Congress from the State of Illinois, 

opening statement ................................................................................................ 1 

Prepared statement .......................................................................................... 3 

Hon. Paul Tonko, a Representative in Congress from the State of New York, 

opening statement ................................................................................................ 47 

Hon. Fred Upton, a Representative in Congress from the State of Michigan, 

opening statement ................................................................................................ 47 

Prepared statement .......................................................................................... 48 

Hon. Henry A. Waxman, a Representative in Congress from the State of 

California, opening statement ............................................................................. 50 

Prepared statement .......................................................................................... 51 

WITNESSES

Mathy Stanislaus, Assistant Administrator for Office of Solid Waste and 

Emergency Response, U.S. Environmental Protection Agency (EPA) ............. 52 

Prepared statement .......................................................................................... 55 

Answers to submitted questions ...................................................................... 169 

Robert J. Martineau, Jr., Commissioner, Tennessee Department of Environment and Conservation ........................................................................................ 76 

Prepared statement .......................................................................................... 79 

Answers to submitted questions ...................................................................... 188 

Stephen A. Cobb, P.E., Chief, Governmental Hazardous Waste Branch Land 

Division, Alabama Department of Environmental Management ..................... 88 

Prepared statement .......................................................................................... 90 

Answers to submitted questions ...................................................................... 199 

Susan Parker Bodine, Partner, Barnes & Thornburg, LLP ................................. 100 

Prepared statement .......................................................................................... 102 

Answers to submitted questions ...................................................................... 211 

Lisa Evans, Senior Administrative Counsel, Earthjustice ................................... 113 

Prepared statement .......................................................................................... 115 

Answers to submitted questions ...................................................................... 214 

Jack Spadaro, Mine Safety & Health and Environmental Consultant ............... 134 

Prepared statement .......................................................................................... 136 

Answers to submitted questions ...................................................................... 247 

SUBMITTED MATERIAL

Discussion draft ....................................................................................................... 4 

Statement of Kevin Cramer, submitted by Mr. Shimkus ..................................... 151 

Statement of the Portland Cement Association, submitted by Mr. Shimkus ..... 163 

Letter of April 11, 2013, from Geosyntec Consultants to Mr. Shimkus .............. 164 

Letter of April 11, 2013, from Civil & Engineering Consultants, Inc. to Mr. 

Shimkus ................................................................................................................ 167 

(1) 

H.R. ————, THE COAL ASH RECYCLING AND 

OVERSIGHT ACT OF 2013 

THURSDAY, APRIL 11, 2013 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY, COMMITTEE ON ENERGY AND COMMERCE

Washington, DC. 

The subcommittee met, pursuant to call, at 10:34 a.m., in room 

2123 of the Rayburn House Office Building, Hon. John Shimkus 

(chairman of the subcommittee) presiding. 

Members present: Representatives Shimkus, Gingrey, Hall, Murphy, Latta, Harper, Cassidy, McKinley, Bilirakis, Johnson, Barton, 

Upton (ex officio), Tonko, Green, Capps, McNerney, Dingell, Barrow, and Waxman (ex officio). 

Staff present: Nick Abraham, Legislative Clerk; Charlotte Baker, 

Press Secretary; Matt Bravo, Professional Staff Member; Karen 

Christian, Chief Counsel, Oversight; Jerry Couri, Senior Environmental Policy Advisor; David McCarthy, Chief Counsel, Environment and the Economy; Brandon Mooney, Professional Staff Member; Andrew Powaleny, Deputy Press Secretary; Tina Richards, 

Counsel, Environment and the Economy; Chris Sarley, Policy Coordinator, Environment and the Economy; Jacqueline Cohen, Democratic Senior Counsel; Greg Dotson, Democratic Staff Director, Environment and the Economy; Caitlin Haberman, Democratic Policy 

Analyst; and Elizabeth Letter, Democratic Assistant Press Secretary. 

OPENING STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS 

Mr. SHIMKUS. I would like to call the hearing to order, and ask 

folks to maybe get the anteroom doors, so that we can start. We 

want to welcome you here to this legislative hearing, and I would 

like to recognize myself for a 5-minute opening statement. 

In our first hearing this Congress, we heard about the great 

work states are doing when it comes to environmental regulation 

and how well equipped and qualified they are to take on that mission. Today we will focus directly on coal ash and legislation designed to give states the framework to build off their successes in 

the past handling waste streams under the Resource Conservation 

Recovery Act, commonly known as RCRA. 

Most people think of federal law when it comes to environmental 

protection and we have passed many important environmental 

laws over the years. However, states also pass environmental laws. 

States have the same concerns about protecting the environment 

2 

and contrary to some of the things you might hear today, states establish and carry out a standard of protection through their environmental permitting programs. In fact, in our last hearing we 

kind of highlighted that most of the inspections are done through 

the state agencies, and my example, the state IEPA, Illinois Environmental Protection Agency, do a lot of the legwork, and it is obviously a partnership that is very important. That is actually what 

my notes say, too. Regulators are directed to establish programs to 

restore, protect and enhance the quality of the environment, and 

to assure that adverse effects upon the environment are fully considered and borne by those who cause them, and that is in my 

home State of Illinois. 

While it may not use the same words Congress has used to direct 

EPA, the effect is exactly the same. The legislation we consider 

today sets out a new approach. It does not follow the same path 

as we have traveled with the RCRA before, which is for Congress 

to set a subjective standard that EPA must interpret and implement through regulations and enforcement. Instead, we are setting 

the standard in statute and charging the states with implementation. Just because it is different does not mean ineffective or not 

protective of human health and the environment. 

We heard the comments and concerns about the bill we passed 

in the last Congress and we worked both across the aisle and 

across the Capitol to develop the text of this discussion draft. The 

legislation makes several key improvements. In particular, it establishes additional requirements for surface impoundments that 

aren’t meeting a groundwater protection standard and requires impoundments that can’t meet the standards within a certain time 

period to close. 

The discussion draft requires groundwater monitoring for all disposal units that are receiving coal ash and tightens the dust requirements. The bill also improves on the dam stability standards 

by requiring an annual inspection of the design, construction, and 

maintenance of the structures by an independent professional engineer. 

The long and short of it is Congress is perfectly capable of establishing a standard of protection for coal ash. The states are perfectly capable, and in the best position, to implement robust permit 

programs for coal ash. 

I have brought with me, as I have in different hearings, actually 

coal ash as we have talked before, beneficial reuse, which is in concrete, which is in kind of a brick-like material. Obviously, we have 

drywall as part of the production. We have countertops. We have 

shingles. And part of this debate for us for a long time is ensuring 

that we properly define this waste that is part of this debate so 

that this stuff that has beneficial uses is not eventually labeled as 

toxic and then we can’t use it in the building of roads and bridges 

and schools and the like, which is what we have been doing now 

for many, many years. So that is part of the concern in which we 

bring this legislation forward, and we are excited at the opportunity to—as a former teacher in high school, you know, the whole 

debate of how a bill becomes a law sometimes gets lost here because we, you know, we push things through. We had a bill, as I 

said in the opening statement. There were concerns. The Senate 

3 

started moving legislation. We have taken a lesson from both of 

those processes. We are adjusting and amending those opportunities. There is some optimism, I think, that there is some common 

ground that can be found, and we look forward to moving this process forward and this is just the first start of, I think, a couple different opportunities of negotiations in this process, which I hope 

will end in a successful conclusion. 

[The prepared statement of Mr. Shimkus follows:] 

PREPARED STATEMENT OF HON. JOHN SHIMKUS

In our first hearing this Congress we heard about the great work states are doing 

when it comes to environmental regulation and how well equipped and qualified 

they are to take on that mission. Today we will focus directly on coal ash and legislation designed to give states the framework to build off their successes in the past 

handling waste streams under the Resource Conservation Recovery Act (RCRA). 

Most people think of federal law when it comes to environmental protection and 

we have passed many important environmental laws over the years. However, 

states also pass environmental laws. States have the same concerns about protecting the environment and contrary to some of the things you might hear today, 

states establish and carry out a standard of protection through their environmental 

permitting programs. For example, in my home state of Illinois, regulators are directed to establish programs to restore, protect and enhance the quality of the environment, and to assure that adverse effects upon the environment are fully considered and borne by those who cause them. 

While it may not use the same words Congress has used to direct EPA, the effect 

is exactly the same. The legislation we consider today sets out a new approach. It 

does not follow the same path as we have traveled with the RCRA before which is 

for Congress to set a subjective standard that EPA must interpret and implement 

through regulations and enforcement. 

Instead, we are setting the standard in statute and charging the states with implementation. Just because it’s different does not mean ineffective or not protective 

of human health and the environment. 

We heard the comments and concerns about the bill we passed in the last Congress and we worked both across the aisle and across the Capitol to develop the text 

of this discussion draft. The legislation makes several key improvements. In particular, it establishes additional requirements for surface impoundments that aren’t 

meeting a groundwater protection standard and requires impoundments that can’t 

meet the standards within a certain time period, to close. 

The discussion draft requires groundwater monitoring for all disposal units that 

are receiving coal ash and tightens the dust requirements. The bill also improves 

on the dam stability standards by requiring an annual inspection of the design, construction, and maintenance of structures by an independent professional engineer. 

The long and short of it is—Congress is perfectly capable of establishing a standard of protection for coal ash. The states are perfectly capable—and in the best position—to implement robust permit programs for coal ash. 

# # # 

[The discussion draft follows:] 

4 


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[DISCUSSION DRAFT] 

11:{TH CO:\GREHS 

IBT SESBJOX H.R. 

To amend subtitle D of the Solid Waste Disposal A{·t to faeilitah' re(,OWl'~­

and beneficial USC', and prmide for the propel' management and disposal, 

of materials generated be' the eomlmstion of e0<11 and other fossil fu!'1s. 

I~ THE HOUSE OF HEPHESENTATIVES 

~[~. introdu('ecj the following hill; whidl was refe1'l'ed to the 

COlllmittee OJ] 

A BILL 

To amend subtitle D of the Solid \VaBte Disposal Act to 

facilitate recowry and beneficial use, and prmide for 

the proper managcmrnt and disposal, of materials generated by the combustion of coal and other fossil fuels. 

Be d enacted by the Senate and House of Representa2 b:ves qfihe UlI'ited States of Arne rica in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act ma~' be cited as the "Coal Ash Hrc~'eling 

5 and Owrsig'h t Act of 2 () 13" . 

f:WHLC\040313\040313.145.xml 

April 3, 2013 (8,45 p.m.) 

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82182.059

F:IAEB\i\113\SWDA \CCw\R\S3512_01.XML [Discussion Draft) 

:2 

SEC. 2. MANAGEMENT AND DISPOSAL OF COAL COMBUS2 TION RESIDUALS. 

3 (a) 1:\ GE:"EIL\L.-Subtitle D of the Solid 'Yaste Dis4 posal Aet (J2 U.S.C. G~)41 et seq.) is amended byaddillg 

5 at the end the following: 

6 "SEC. 4011. MANAGEMENT AND DISPOSAL OF COAL COM7 BUSTION RESIDUALS. 

8 "(a) STxrE PER:\IIT PnO(lR.\)IS FOR COAL CmIBt-S9 TIO:" RESIDL\LK-Eaeh State ma;- adopt and implement 

10 a eoal eombustioll resi(luals permit progTam. 

12 "(1) NOTIFICATlO:".-Not later than G months 

13 after the date of enaetment of this seetioll (exeept 

14 as proyided by the dea(lline identified under sub15 seetion (d)(3)(B)), the Goycrllor of eaeb State shall 

16 notify the Administrator, in writing', whether snell 

17 State will adopt and implement a eoal eombnstion 

18 residuals permit program. 

19 "(2) CEI~TIFIC"\TIO:".-

20 "(A) I:" GE:"EIUL.-Not later than 3G 

21 months after the date of enaetment of this see22 tioll (exeept as proyided in subseetions (f)(I)(A) 

23 and (f)(I)(C)), in the ease of a State that has 

24 llotified the Administrator that it will imple25 ment a eoal eombustion residuals permit pro26 gTa1l1, the hea(l of' the lead State ageney 1'esponf:IVHLC\040313\040313.145.xml (54572811) 

April 3, 2013 (8:45 p.m.) 
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82182.060

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April 3, 2013 (8:45 p.m.) 

sible for implementing- the eoal eomlmstion residuals permit prog:ram shall submit to the .r\.dministrator a eertifieation that such eoal eombustion residuals permit program meets the 

speeifieations deseI'ihed in subseetion (e), 

"(B) CO:\T}J:\TS.-A eertifieation submitted under this paragraph shall inelude-

"(i) a letter identiQ'ing- the lead State 

ageney responsible for implementing the 

('oal eombustion residuals permit program, 

signed by the head of such agency; 

"(ii) iclentifieatioll of' an~7 other State 

agenc'ies inyolwd ,\'ith the implementation 

of the eoal eombustion residuals permit 

progTal1lj 

"(iii) a narratiw description that pro-

,'ides an explanation of how the State ,,'ill 

enSUl'e that the coal combustion residuals 

permit program meets the requirements of 

this seetion, including a description of the 

State's-

"(I) proeess to inspeet or other-

,,'ise determine eompliallee ,,'ith sueh 

permit program; 

(54572811) 
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"(II) llroeeRs to enforee the l'equirell1elltR of such permit progTam; 

"(III) publie participation proeess for the promulgation, amendment, 

or repeal of l'eguiations for, and the 

issuance of permits unrler, such permit program; and 

"(IV) statutes, regulations, or 

polieies pertaining to public access to 

information, such as gToumhmtel' 

11 monitoring data; 

12 "(iy) a legal eertifieation that the 

13 State has, at the time of eertifieation, fully 

14 effeetiye statutes or rE'gulations necessary 

15 to implement a eoal eombustion residuals 

16 permit program that mE'ets the speeifica17 tions described in subspction (('); and 

18 "(y) copies of State statutes and regu19 lations des('ribed in elanse (iy). 

20 "(C) UPD"\TES.-A State ma~- update the 

21 eertification as needed to reileet ('hanges to the 

22 coal eomlmstion residuals permit program. 

23 "(:3) l\L\IXTEXAXCE OF 4005( e) OR 3006 PRO24 URA:'\I.-Ill ol'der to adopt or implement a coal ('om25 lmstion residuals pennit program U1Hier this section 

f:WHLCI0403131040313.145.xml 

April 3, 2013 (8:45 p.m.) 

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(illeluciing' pursuant to subsection (f)), the State 

2 ag-ene," responsible for implementing a coal eombus3 tiOll residuals permit program ill a State shall main4 tain an approwd program under seetion -l005( c) or 

5 an authorized llrognlm under section :300G. 

6 "(e) PEIDIIT PHO(lRX~! 8PECII·'!C\TIOXS.-

7 "(1) l\I!XL\1LII HEQnIU~;\IKXTS.-

8 "(.\) Ix GEXEIL\L.-'\ coal eombustion I'e9 siduals permit prognull shall apply the reyised 

10 eriteria described in paragTaph (2) to OWllers or 

11 olw]'ators of struetnres, ineluding: surfaee im12 pouudments, that reeeiYe eoal eombnstion re13 siduals. 

14 "(B) STRCC1TR.\!J IXTEGHlTY.-

15 "(i) EXG!XEEHIXO CEHTIFIC,\T]()X.-

16 A coal eombustioll residuals permit pro17 g'l'alll shall require that an indepeudellt 

18 

19 

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22 

23 

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f:IVHLCI0403131040313.145.xml 

April 3, 2013 (8:45 p.m.) 

registered j)rofC'ssional enginC'er eerti~-

that-

"(I) the design of structures is ill 

aceorciallee "itb l'eeognized and gellerally aecepted good engineering praetices for eontainment of the mm;:imulll 

YOIUllle of eoal eomlmstion resifluals 

(54572811) 
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April 3, 2013 (8:45 p.m.) 

(j 

and liquids appropriate for the st1'11Cture; and 

"( II) the construction and maintenance of the strw:ture will ensure 

dam stabilit~,. 

"(ii) IXSPECTIOX.-A coal combustion 

residuals permit prog,Tam shall reqnire that 

stnlctnres that are surface imponndments 

be inspected not less than am111all~' by an 

illdqlendent registered professional ellgilleer to assure that the design, operation, 

and maintenance of the surface impolllldl11ent is in aeeordanee with reeog11ized and 

generall~' aeeepil'd good eng'ineering practiees for eontainment of the maximum yol11me of eoal eomlmstioll residuals and liquids whieh eall he impollnded, so as to ensure dam stabilit~,. 

(54572811) 

"(iii) DEFICIE:,(CY.-

"(I) Ix GEXEIL\L.-If the head 

of the agem'Y responsible for implementing tilE' eoal ('ombustion residuals 

permit program determines that a 

structure is defieient ~\ith respeet to 

the requirements in e]auses (i) and 
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April 3, 2013 (8:45 p.m.) 

7 

(ii), the head of tile agellc~' has the 

authorit:, to require action to correct 

the defieielll'~' aC'eol'ding to a sehedule 

determined by the ao'eney. • e- t 

"(II) C,,( 'OHHE( 'TED DI<:F1-

CIE:\'CIEs.-If a defieiency is not C01'-

reeted aeeol'ding to the schedule, the 

head of the agency has the authority 

to require that the struetUl'e dose in 

aceordance "ith suhseetioll (h). 

"(C) LOCATIO:\'.-Each strueture that first 

reeeiyl's eoal eombustioll residuals after the date 

of ell(wtment of tllis seetion shall be eonstructed 

~\ith a hase loeate(l a minimum of :2 feet ahoye 

the upper limit of the water table, unless it is 

demonstrated to the ~atisfactioll of the agenc~' 

respollsible for implementing the c'oal eomhustion residuals permit 1)r06'Ta111 that-

"(i) the h~'drogeologie eharaetel'isties 

of the stl'uetUl'e and surrolln(ling land 

\yould preelude suell a l'equirempnt; and 

"(ii) the flluetioll and integrity of the 

liner s~'steJll "ill not be adyersel~' impaeted 

b~' eontact with the water table. 

(54572811) 
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April 3, 2013 (8:45 p.m.) 

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"(i) 1:\ OE:\EIL\L.-The agell(~y l'esponsihle for implementing' the C'oal C'0I11-

Imstiol1 residuals p('l'mit program shall require that mnlel'S or oprl'ators of struC'-

tures addees,; wind dispersal of dust by requiring· C'oyer, 01' b~' wrtting C'oal combnstion residuals with ,Yatt>r to a moisture 

('onte11t that preyents ,yi11(1 dispersal, facilitates ('ompaction, and does not result in 

free liquids. 

"(ii) ALTEH:\Xl'I\'E JIETIIODS.-Subjed to the reyirw and approyal b~' the 

agrnc~-, O\nlt~rs 01' operators of structures 

lllay propose alternatiw methods to address "i.nd dispersal of dust that "i.ll ])1'0-

yide comparable or more efl'eetiye control 

of dust. 

"(E) PEIUIITf-l.-The ag'ency responsible 

for implementing' the coal combustion residuals 

permit progTam shall require that the mnwr or 

operator of each strueture that receiws coal 

eomlmstion residuals after the date of enaetment of this section appl~' for and obtain a permit illeorporating thr requirements of the eoal 

combustion resi(iuals permit prognUll. 

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April 3, 2013 (8:45 p.m.) 

W.\TEI{ :.'I!O);ITOHl);U.-

"(i) NOTlI"l('Sno);.-Not later than 

the date on ,,,hieh a State submits a eertifieation under snbseetion (b)(2), the 

State shall noti~- owners or operators of 

strnetllres within the State of-

"(1) the obligation to apply for 

and obtain a permit under snbparagraph (E)i and 

"(II) the gToundwater monitoring 

requirements allplieable to strnetures 

nnder paragTaph (2)(A)(ii). 

"Oi) GHOC);l}W.\TEH :.'I1O);ITOHl);G.-

~ot later than 1 year after the date on 

'"hieh a State submits a eertifieation under 

suhseetioll (b)(2), the State shall require 

the mnler or operator of eaeh stl'ueture to 

('omply ,,,ith the groundwater monitoring 

requirements nnder paragraph (2)(A)(ii). 

for information deserihed in sec,tion 1905 of 

title 18, Cnited States Code, the agenC'.'- 1'e8ponsible for implementing the eoal eombustion 1'esidnals permit progTam shall ensure tl1at-

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April 3, 2013 (8:45 p.m.) 

10 

"(i) documents for permit detenninations are made an'lilable for publie reyie,Y 

and C0111ment under the pllhlie participation proc'ess desel'ibed III subseetion 

(b)(2)(E )(iii)(III); 

"(ii) final (letenninations on permit 

allplieations are made knmm to the public; 

and 

"(iii) groundwater monitoring data 

eollected under paragraph (:2) is publiely 

ayailable. 

"(II) AGE:\('Y .U-TIIOHITY.-

"(i) Ix GEXEIUL.-The a O"(,}1eV re- ~ . 

sponsible for implementing the eoal eOlllbustion residuals permit program has the 

anthorit~- to-

"(1) obtain information neeessary 

to deteI1uine ,yhether the owner or operato1' of a struetnre is in eompliam'e 

with tlw coal eombustion residuals 

permit program requirements of this 

seetion; 

"(II) eonduet or require monito ring and testing to ensnre that 

struetul'es are ill eompliance with the 

(54572811) 
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82182.068

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April 3. 2013 (8:45 p.m.) 

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('oal ('ombustion residuals permit ])1'0-

gram requirements of this se('tion; 

and 

"(III) ente!', at rpasonable ti111('s, 

any site or premise suhjeet to thp coal 

combustion residuals permit program 

for thp purpose of inspeeting structures and reyieIYing' I'l'cords releyant 

to the operation and maintenam~e of 

structures. 

"(ii) }\IoxITOmXG Axn TENTIXG,-If 

monitoring or testing' is eondueted under 

('Iause (i)(U) b~- or for the age.'ue:" resj)onsible for implementing the eoal C'omlmstion 

residuals permit program, the agellC'Y shall, 

if requested, lH'oyide to the owner or operator-

(54572811) 

"(1) a written dpseriptioll of the 

monitoring or testing eompleted; 

"(II) at the time of sampling, it 

portion of eaell samplp equal in yolume or weight to the portion retained 

by or for the aO'elley' and ~ b ., 
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82182.069

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April 3, 2013 (8:45 p.m.) 

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"(III) a eOjl~' of the results of 

an~' analysis of samples eolleeted b~' or 

for tlw agE'lley. 

"(I) 8T.\TE "\L'TIIOHITY.-A State il11plementing a ('oal eombl1stion residuals permit 

pro(,.'1'am has the authorit~· to-

"(i) insped strueturesi and 

"Oi) implement and enfo]'ee the eoal 

combustion residuals permit pl'ogl'am. 

"(,]) REQ1'IHE:\!E~T8 I·'OH :-)t'HFACE DICHITEHL\.-

"(i) I~ Cm~EI{AL.-In addition to the 

groundwater monitoring and eorreetiYe action requirements deseribed in paragraph 

(2)(A)(ii), a coal eombustion residuals permit program shall require a sul'face il1lpOlludnwnt that reeeiws eoal combustion 

residual,., after the date of enaetment of 

this seetion to-

(54572811) 

"(1) eOlllpl~' "i.th the requirements in clause (ii)(I)(aa) and subdauses (II) throngh (IT) of elause (ii) 

if'the surface illlpoundment-

"(aa) does not-
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82182.070

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April 3, 2013 (8:45 p,m,) 

(54572811) 

1:3 

"CA.A) haw' a liner s~'st em deseribe<l in section 

25tlAO(h) of title 40, Code 

of r-i\'<lel'al R.egl11ations; and 

"(BE) meet the design 

eriteria deseribed in sec-tion 

2fi8AO(a)(1) of title 40, 

CodE' of Federal R.ei"rulatiol1S; aIHl 

"(bb) within 10 ~'ears after 

the date of enaetment of this SE'Ctiou, is requil'ed undE'r sectioll 

258.i"iG(a) of title 40, Code of 

Federal I{egl1Iatiolls, to unrlE'rgo 

an assessment of eorreetiYe measllres for all~' constituent idelltifiE'(j in paragraph (2 )(A) (ii) for 

,yhieh assessment groulHhmter 

monitoring is requil'ed; and 

"(II) ('ol1lply with the requirements ill clanse (ii)(l) (bh) and snbelanses (II) throngh (IV) of clause (ii) 

if the surfaee impollndment-

"(aa) does not-
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82182.071

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April 3, 2013 (8:45 p.m.) 

(54572811) 

1-t 

"(~~\) haw a liner system deseribed III seetion 

258.-10(b) of title -to, Code 

of Federal Reg11lations; and 

"(BB) meet the design 

eriteria deseribed in section 

258.40(a)(1) of title -to, 

Code of Federal I{egulations; and 

"(hb) as of the date of ellHetmellt of this seetion, is sul~jeet 

to a State eorreetiw aetion requirenwnt. 

"(ii) REql:IIm:m~:\TN.­

"(I) DK\DLI:\ES.-

"(aa) 1:\ GE:\ER.\L.-Except 

as prmided in item (bb), subelanse (nT

), and elanse (iii), the 

gToUlHlwater protection standard 

for structures identified in (·lanse 

(i) (1) E:'stablished b~' the agelle,\' 

responsible for implementing the 

eoal combustion residuals permit 

progTam under seetion 258.55(h) 

or 258.55(i) of titlE:' -to, Code of' 
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82182.072

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April 3, 2013 (8:45 p.m.) 

(54572811) 

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Federal Rel"rulations. for any constituent for whieh cOl'reetin' 

measllres are required shall he 

met-

"(AA) as soon as praetieable at the releyant point 

of eomplianee, as described 

ill seetion 258.40(d) of title 

40, Code of Federal RegulabOllS; and 

"(BB) not later than 

10 years after the date of 

enaetment of this seetion. 

"(bb) L\rpOl:xmmxTS SCBJECT TO S'L\TE COHHECTIYE "\CTIOX HE(~l·IHE::\IEXTs.-Exeept 

as IH'oyided in snbelause (IV), the 

groundwater proteetion standard 

for strnetUl'es identified in elause 

(i) (II) established b~' the ag'ellcy 

responsible for implementing the 

eoal ('ombnstion residuals permit 

progTam under seetioll 258.5;3(h) 

or 258.55(i) of title 40, Code of 

Federal Regulations, for al1~' ('on-
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82182.073

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April 3, 2013 (8:45 p.m.) 

(54572811) 

IG 

stitUPllt fm' whiC'h C'orrpC'tiYe 

measurps are required shall be 

met-

"(AA) as soon as praetieable at the releyant point 

of eomplianC'e, as deseT'lbed 

III seetiOIl :258.40( d) of title 

4.0, Code of Fedt'ral Regulations; and 

"(BB) not later than 8 

,\'Cars after the date of' enaC'tnwnt of this seetion. 

"(II) Cu)snm.-If the deadlines 

under C'iause (I) are not satisfied, the 

strueture shall eeast' reeeiYlllg' eoal 

eombustion resi(Iuals and initiate elosnre un(Ier snbseetion (h). 

"(III) I:\,TEHDI ~1E.\SCl{ES.-

"(aa) I:\' OE:\,EHAL-Exeept 

as prmide(I in item (bb), not 

later than 90 da~'s after tile date 

on wilieh the assessment of ('01'-

reeti,'e measures is initiated, the 

omler or operator shall implement interim measures, as ne('-
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82182.074

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April 3. 2013 (8:45 p.m.) 

(54572811) 

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essm',". under the fa (-tors in seetion 258.58(a)(:3) of' title 40, 

Codr of Fedrral Regulations. 

"(bb) l:\IP()C'\InIE:\"TS Sl'B-

.fECT TO ST.lTE l'OHRECTWE "lCTIO:\" IU::l.)rIHE:\IE:\"TiS.-Item (aa) 

shall oulr aplll~' to surf'aee impoumlmruts subjeet to a State 

eorrretiw (letioll requirement as 

of tIlt' date of enaetment of this 

seetioll if the owner or operator 

has not implement.ed intE'rim 

measures, as neeessm',',> undE'l' 

the faetors III seetion 

2GfLJ8(a)(3) of title 40, CodE' of' 

Federal RE'gulatiollS. 

"(lY) EXTE:\"SIO:\" OF DEADLl:\"E.-

"(aa) h GE:'\rJrL\L.-Exeept 

as prmided in item (bb), the 

(teadline for meetiug a ground-

,,,a tel' proteetion standard under 

tile ag-ell(,~' responsible for implelllenting- thE' ('on I eomhustioll re-
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82182.075

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April 3, 2013 (8:45 p.m.) 

(54572811) 

18 

siduals permit program, after opportunity for public: uotice and 

('olllllleut under the public partieipatiol1 process described in 

subsec,tioll (b)(2)(B )(iii)(III), 

based on-

"(AA) the effeetiwl1ess 

of al1~' interim measures implelllented b~' tIl(' owner or 

operator of the facility untier 

seetioll 251L,)8(a)(3) of title 

40, Code of Federal Reglllatiol1S; 

"(BB) the lewl of 

progTess demollstrated III 

llH:'etillg the gToundwater 

protection standard; 

;'(ee) the potential for 

other adyerse human health 

or enyirOlllnelltal exposures 

attributable to the eontamination from the surface impoulHimellt undergoing COI'-

rectiw action; and 
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82182.076

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April 3, 2013 (6:45 p.m.) 

(54572811) 

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"(DD) the laek of ayailable alternatiw manag'emmt 

('apaeity for the ('oal eOIl1-

Imstioll residuals and related 

materials managed in the 

imponndmeut at the facility 

at "'ltieII the impoundment 

is lo<'ated if the OWller or operato I' has used best effOli.s, 

as neeessar.\T, to desigll, obtain any neeessar.\T permits, 

fim\llee, eonstrnct, and 

render operational the alternatiw lllallag'ement eapaeity 

during the time period for 

meeting a grouudwater protec·tion standard III Sll bdause (I), 

"(bb) EXCEPTIO;'; ,-1'he 

deadlines uuder subdause (I) 

shall Hot be extended if there has 

been ('outaminatioll of publie or 

priyate cirinkiug water s.\'stems 

attributable to a surface 1111-

l)OHncimeut ullciero'oino' eorreetiyp '"' '" 
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82182.077

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April 3. 2013 (8:45 p.m.) 

(54572811) 

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aetioll, unless the e011tami11ation 

hm; been addressed by proyidillg' 

a permanent 1'eplaeement ,Yater 

system. 

"(I) I.\" m~'\"ErL\L.-Ill addition 

to the fO'Olll1(hYater monitoring and 

('o1'reeti\'e a('tion rC'<]uirements deseribed in paragraph (2)(A)(ii), a ('oal 

('olllbusti011 reio;iduals permit progTam 

sball require a surfa('e impo11ndment 

that l'C'C'eiYes ('oal eombustion residuals after the date of enaetmellt of' this 

section to ('ompl? ,,-jth the requirements in subelause (11) if the surf'a('e 

impOUll(lmellt-

"(aa) does not-

"(A~~) haye a liner system desel'ibed III section 

258..10(b) of' title 40, Code 

of Federal Regl11ations; alHl 

"(BB) meet the design 

eriterja (leseribed in seetion 

258.40(a)(l) of' title 40, 
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82182.078

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April 3. 2013 (8:45 p.m.) 

(54572811) 

:.n 

Code of Federal Regulations; 

"(bb) more than 10 .'-ears 

after the date of enaetment of 

this section, is required under 

section 258.5G(a) of title 40, 

Code of Federal Regulations, to 

undergo all assessment of C'orrectiYe measures for any constituent 

idelltified in paragraph (2)(":\)(ii) 

for ,,-hich assessment gToundwater monitoring is required; and 

"( ee) is not subjeet to the 

requirenwuts in elanse (ii). 

"(II) I{EQnHE:IIE:\TS.-

"(aa) CLosnm.-The structnres identified ill subelanse (ll 

shall eease reeehing (~oal ('ombustion residuals and initiate elosure 

in aec'ol'danee "ith subseetion (ll) 

after alternatiYe management eapaeit.'- for the ('oal eombustioll residnals and related materials 

manag'\'d in the impoundment at 

the faeility is m-ailable. 
25 


82182.079

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April 3, 2013 (8:45 p.m.) 

(54572811) 

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"(bb) BEST EFFOHTS.-The 

alternatiw management eapal:it.\, 

shall be deYelope(l as soon as 

praetieallle with the O\\1ler or operator using best efforts to design, obtain neeessar.\' permits, finanl:e, C'ollstruC't, and render 

operational the alternatiw mall-

.\GE'\LE:\'l' C\I'A('ITY PLA:\.-The 

O\nJer or operat.or shall, in C'ollaboration with the ageney respollsible for implementing the 

coal eombustion residuals permit 

progT<ll1l, l)l'ppare a ,Yritten plan 

that rIeserihes the steps neeessary 

to deyeJojl the aJtematiYe management eapacity awl im'Judes a 

schedule for eompletion. 

"(dd) PCBLIC P"\l{'l'ICIP"\-

TIo:\.-The plan deseribed III 

item (ec) shall b<; subjeet to publie llotiee and comment under the 

publiC' partieipation l)roeess de-
26 


82182.080

F:\AEBIM 131SWDA ICC\VIRIS3512_0 I.xML [Discussion Draft] 

scrilwd 1Il subsection 

2 (h)(2)(B)(iii) (IIl). 

3 "(2) HE\'ISED CHlTERU.-'l'he reyised criteria 

4 desc'ribed ill this paraf,,'Taph a1'e5 

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f:WHLCI0403131040313.145.xml 

April 3, 2013 (8:45 p.m.) 

"(A) the reyised criteria for design, 

groull<iwater monitoring, ('orrectiw action, closure, and post-closure, for stl1lCtures, includmg-

"(i) for ne'" structures, and lateral expansions of exjsting stmctures, that first 

reeeiYe eoal eombustion residuals after the 

date of enactment of this seetion, the reyised eriteria regarding design requirements deseribed in seetion 25R.40 of title 

40, Code of Federal Rpgulations, exeept 

that the leaehate eolleetion s~'stem requirel1lpnts deseribed in spetioll 26R.40(a)(2) of 

title 40, Code of Federal HegulatioJ1s do 

not appl,\' to stl'Uetures that are suri'aee 

impoundments; 

"(ii) for all struetnres that reeelYt' 

eoal eombustioll residuals after the date of 

enaetmellt of this seetion, the reYised eriteria reg'arding' gToundwater monitoring' 

and eorreetiYe Hetion requirements de-

(54572811) 
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82182.081

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fWHLCI0403131040313.145.xmJ 

April 3, 2013 (8:45 p.m.) 

24 

s(Tibed in fmbpart E of part 258 of title 

40, Code of Federal Regulations, exeept 

that, for the purposes of this paragraph, 

the reyised ('riterin shall also include-

"(1) for the purposes of (letectioll 

monitoring', the eonstituents boron, 

chloride, ('ondudiyity, f1uoridp, I1lPrCUI)', pH, sulfate, sulfide, and total 

(lissolwd solids; all(l 

"(II) for the purposes of assessment monitoring, establishing a 

groundwater prote('tion standard, and 

assessment of eOl'reetiYe measures, the 

constituents aluminum, boron, ('1110-

ride, f1uoride, iron, mallganesp, molybdenum, pH, sulfate, and total dissolyed solids; 

"(iii) for all stmctnres that recelYe 

coal combustion resi(iuals aftpl' the date of 

enaetment of this seetion, in a manner 

l'onsistent with subseetion (Il), the reyised 

eriteria for e10sure deseribed ill subspctions 

(a) through (c) and (h) through (j) of section 2;58.GO of title 40, Code of Fpderal 

Regulations; and 

(54572811) 
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82182.082

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April 3, 2013 (8:45 p.m.) 

"(iy) for all struC'tUl'es that receiw 

coal combu"tion l'e"i(luals after the date of 

emwtnwnt of this section, the re,ised criteria for post-('losure ('are described in sechon 258.61 of title 40, Corle of Federal 

Reg11lations, except for the requirement (lescribed in subsection (a)(4) of that section; 

"(E) the I'e,ise(l eriteria for locatioll restrietions (leseribe(l in-

"(i) for IW'" structures, and lateral expansions of existing structures, that first 

receiyc eoal eombustion residua I" after the 

date of enaetment of this section, sections 

2;')8.11 through 258.15 of title 40, Code of 

Fe(leral I{c'gulatiolls; and 

"(ii) for existing structures that reeeiye coal ('olllbustion residuals after' the 

date of enaetment of this section, seetions 

258.11 and 258.15 of title 40, COIle of 

Federal Hegulations; 

"(e) for all structures that receiw eoal 

eombustion residuals after the date of enactmeut of this seetiou, the l'e,ised criteria for ail' 

quality (les('ri))ed ill seC'tion 258.24 of title 40, 

Code of Fe(leral Regulations; 

(54572811) 
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April 3, 2013 (8:45 p.m.) 

2G 

"(D) for all structurcs that receiw eoal 

comhustion residuals after the date of enactmellt of this seetion, the reiise<l criteria for fi-

!laue-ial assurane-e described in subpart G of 

part 258 of title -10, Code of Federal Regulations; 

"(E) for all stmctures that reeeiYe eoal 

eomlmstion residuals after the date of ('nactlllellt of this seetioll, the reyised criteria for surface inlter deseribed in section 258.27 of title 

-10, Code of }<'le<!eml Regulations; 

"(F) for all stmetures that reeelW eoal 

eomlmstion resi<luals aftl'r the date of enaetment of this section, the reyised criteria for reeordke('ping deseribed in section 258.29 of title 

-10, Code of Fedeml Regulations; 

"(G) for landfills and other laml-based 

units, other than surfaee impoundments, that 

reepiw eoal eombustion resiliuals after the date 

of enaetnwnt of this seetion, the reiised eriteria 

for rUI1-on and run-off contl'ol systems deseribed in seetion 258.2G of title 40, Code of 

Federal Regulations; aIHI 

"(H) for surface impoundments that reeeiw eoal eombustion residuals after the date of 

(54572811) 
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82182.084

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27 

enaeimcnt of this seetioll, the l'eyil:>ed eriteria 

2 for run-off eontl'ol s,\-steml:> deseribed in seetioll 

3 258.2(j(a)(2) of titlt' -l0, Code of Fpdpral Rpg11-

4 latiolls. 

5 "(d) \YHITTEX NOTICE "\X]) OI'POH'lTXITY TO RE~I6 EDY.-

7 "(1) Ix (mXER"\L.-Tllp Administrator shall 

8 prOllde to a State written notiee and an opportunity 

9 to ren1Pd~- defieipneips in accordam'e "ith paragTaph 

10 (2) if at any time tllp State11 "(A) does not satis~- tllp notific'atioll re12 quirement undpl' "ubspetion (b)(1); 

13 "(E) has not submitted a l'prtification 

14 under subsection (b)(2); 

15 "(C) dops not satis~- the maintenance re16 quirement under subseetion (bW~); 

17 "(D) is not implementing' a eonl comlms18 tion residuals permit program that19 "(i) meets t!tp specifications described 

20 in suhseetion (e); or 

21 "(ii)(I) is eonsistpnt with the certifi22 eatioll under suhseC'tion (b)(2)(E )(iii); and 

23 "(II) maintains fully effeetiYe statutes 

24 or reg11latiollS lleepSSal'~- to implement a 

f:IVHLCI0403131040313.145.xml (54572811) 

April 3, 2013 (8:45 p.m.) 
31 


82182.085

F:\AEB\M 131SWDA ICCW\RIS3S12_0l.XML [Discussion Draft] 

eORI C'ombustion rt'siduRIs permit pm/,!1mn; 

2 or 

3 "(E) does not make ,1Yailable to the Ad4 ministratol' wi.thin 90 da;-s of a written request, 

5 spel·ifie information neeessaf';- for the Adminis6 trator to Rseertain whether tIl(' State has eom7 plied ,,,itb subparagyapbs (A) through (D). 

8 "(3) REQl'ES'l'.-If' tilt' request deseribed III 

9 paragraph (1 )(E) is made pursnant to a petition of 

10 the Administrator, the Administrator Rhall onl;' 

11 make the request if the Administrator does not pos12 st'ss the information neet'ssal~' to aseertain ,,,hetht'r 

13 the State has eomplied ,,,ith subparagTaphs (A) 

14 through (D) of llaragTaph (1). 

15 "(:3) C()~TE~TS OP ~OTICE; DE.\DLI~E I<'OR HE16 sPo~sE.-A llotiee proyided under this su\)seetion 

17 shall18 "(A) inelnde findings of the Administrator 

19 detailing anr applil'a ble defieieneit's iu20 "(i) eomplianee h~- the State "ith the 

21 notifieatioll requirement under suhseetion 

22 (b) (1); 

23 "(ii) ('omplial1ee b;' the State with the 

24 eel'tifieation reqnirement under subSt'l'tiOll 

25 (b)(2); 

f:IVHLCI0403131040313.145.xml (54572811) 

April 3, 2013 (8:45 p.m.) 
32 


82182.086

F:\AEB\.\113\SWOA \CCW\R\S3512_OIXML [Discussion Draft] 

39 

"(iii) eOI1l11lianee br the State ~,ith the 

2 maintenanee requirement under subseetion 

3 (b)(:1); 

4 "(iy) the State eoal eombnstion re5 siduals pertuit program in meeting the 

6 speeifieations deseribed in subseetion (e)i 

7 and 

8 "(y) eomplianee b~- the State "ith the 

9 request u11der paragraph (I)(E); and 

10 "(B) identi~-, in eollahoration "ith the 

11 State, a rea son a hie deadline, b~- "'hieh the State 

12 shall remedy the defieil'llC'ieR (Ietailed under 

13 Rubpm'agraph (A), whieh shall be14 "(i) in the ease of a defieiene~' de15 seribed in elanses (i) through (iy) of sub16 paragraph (A), not earlier than 180 da~-s 

17 after the date on \"hieh the State reeeiYes 

] 8 the notieej and 

19 "(ii) in the ease of a defieieney de20 seribed in subparagraph (A)(y), llot later 

21 than 90 da~'s after the date on whic·h the 

22 State reeein's till' lJotiee, 

23 "(e) I:\II'LE:\lE~TXl'I()~ BY A]):III~ISTIUTOH.-

f:IVHLCI0403131040313.145.xml (54572811) 

April 3, 2013 (8:45 p.m.) 
33 


82182.087

F:IAEB\M 13\SWDA \CCw\R\S3512_01.xML [Discussion Draft] 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

80 

"(1) 1:\ <lE:\EIUL.-The Administrator shall 

implement a coal combustion residuals permit jlro-

"Tam 

~ for a State . only . if-

"(A) the GowI'llor of the State notifies the 

Administrator under subsection (b)(l) that the 

State "'ill not adopt and implement a lwrmit 

l)I'oOTmn' '" , 

"(E) the State has receiwd a notice under 

subseetion (I) and the Administrator determines, after pro\'iding a ;jO-day period for noti('e and public eomment, that till' State has 

failed, b~' the deruUine identified in the noti(~e 

under subsection (d)(:3)(B), to ['emed~' the deficien('ies detailed in the notiee under subsection 

(d)(:3)(A); or 

"(e) the State informs the Administrator, 

in \Yriting, that SUdl State "ill no longer implemen1 sneh a permit progTam. 

"(2) HE\'!Ew.-A State ma~' obtain a l'c\icw of 

a determination b~' the Administrator unrler this 

subsedion as if the determination was a final re[,,'11-

lation for purposes of section 700G. 

"(3) OTlIEH N'l'IHT'ITHEN.-For shuetures 10-

eated on property within the e:-..ierior boundaries of 

a State for whieh the State does not haw authol'it~, 

f:\VHLC\0403131040313.145.xml 

April 3, 2013 (8:45 p.m.) 

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34 


82182.088

F:\AEB\M13ISWDAICCW\RIS3512_0I.XML [Discussion Draft] 

::n 

01' jurisdiction to regulate, the A(iministl'ator shall 

2 implenwnt a ('oal ('omlmstioll residuals permit pro3 gram onl~' for those stl'Uetures. 

4 "(4) RE(~UHE~IE:\,T:-;.-If the Administrator 

5 implements a eoal eombustioll residuals permit pro6 gram for a State under paragraph (1) or (8), the 

7 permit llrogTam shall ('onsist of the speeifieatiolls de8 s('ribed in suhseetion (e). 

9 "(5) E:\,F()HCE~IE:\,T.-

10 "(A) I:\' GE:\,ER.\L.-If the Administrator 

11 implements a eoal C'omhustioll residuals permit 

12 program for a State under paragraph (1)-

l3 "(i) the authorities referred to in seC'-

14 tiOll 4005(e)(2)(A) shall appl~' with respect 

15 to eoal eombm;tioll residuals and stnwtures 

16 

17 

18 

19 

20 

21 

22 

23 

24 

f:WHLCI0403131040313.145.xml 

April 3, 2013 (8:45 p.m.) 

for ,,-hieh the Administrator is implementing' the eoal eomlmstion I'E'siduals permit program; and 

"(ii) the Administrator nla~- use those 

authol'itit'S to inspeet, gather information, 

and E'nfOl'C'e the requirements of this SE'C'-

tion in the State. 

"(B) OTIIEH STHtT'lTHES.-If the .A.dministrator implements a ('oal C'ombm;tion ree;iduals 

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82182.089

F:\AEB'u\113\SWOA \CCW\R\S3512_0l.xML [Discussion Draft] 

permit prognull for a State ullder paragraph 

3 "0) the authorities referred to in see4 tioll 400.')(e)(2)(A) shall appl," ,yith resped 

5 to eoal combustion residuals and stmctUl'es 

6 for whi('h the Administrator is imple7 mentiug tlw eonl ('omlmstion residuals pel'-

8 mit llrogl'am; and 

9 "(ii) the Administrator may use those 

10 authorities to inspe('t, gather information, 

11 aud enfol'('e the requirements of this sec12 tion for tlw Sll'Uetures for ,,-hieb the Ad13 millistrator is implementing' the ('oai ('0111-

14 lmstion residuals permit program. 

15 "(f) ST.\TE CO:'\THOL AFTER hll'LE;\IE:'\TAT!O:'\ BY 

16 AmI!:,\!STIL\TOR.-

17 

18 

19 

20 

21 

22 

23 

!;WHLC\04031 3\04031 3.1 45.xml 

April 3, 2013 (8:45 p.m.) 

"(1) ST.\TE (,O:'\TIWL.-

"(A) ?-JEW .\J)()I'TIO:'\ A:,\D nIPLK\JE:,\'r.\-

TIO:'\ BY ST.\TE.-For a State for ,yhieh the 

Administrator is implf:'lllellting a eoal ('ombustioll residuals permit program under subsection 

(e)(l)(L\), the State mar arlopt and implement 

sueh a permit program br-

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82182.090

F:\AEB\M13\SWDA\CCw\R\S3512_01.XML [Discussion Draft] 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

f:IVHLCI0403131040313.145.xml 

April 3, 2013 (8:45 p.m.) 

"(i) lloti~ying the Administrator that 

the State will adopt and implement such a 

permit progTmni 

"(ii) not later than G months after the 

(late of such notifieation, sUbmitting to the 

Administrator a eertifieation under subspetion (b)(2); awl 

"(iii) reeei,ing from the Administrator-

"(1) a determination, after 111'0-

yiliing a :30-da;' period for notice and 

pnhlie eOlllment that the State ('oal 

C'ombustion residuals permit program 

meets the specifiC'ations desC'l'ibed in 

snbseetion (e)i and 

"(II) a timeline for transition of 

eont1'ol of till' eoal combustion residuals permit program, 

"(B) RE~IEnYI;\G J)EFH'Il<~;\T PEIDIIT PHOGH .• \:\L-For a State for whieh the Administrat01' is implementing a eoal eomlmstion residuals permit program under subseetion 

(e)(l)(B), the State may adopt and implement 

sueh a permit prognl111 b~'-

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82182.091

P:\AEB\M 13\SWDA \CCW\R\S3512_01.XML [Discussion Draft] 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

f:IVHLC\040313\040313.145.xml 

April 3, 2013 (8:45 p.m.) 

"(i) remed~;ng only the deficiencies 

detailed in the llOtiee p]'O\;ded under subseetion (d)(:3)(A); and 

"(ii) reeeiyillg from tIlt' Administ1'ato1'-

"(1) a determination, after pI'o-

,;ding a 30-day period for notice aWl 

public eomment, that the deficiencies 

detailed in suell llotiee haye been remedied; and 

"(II) a timeline for transition of 

control of the coal eombustion I'esidua ls permit progl'am. 

"(e) RESL\IPTIO:'-: OF nrpLE~IE:'-:TXrrO:'-: 

BY S'[\\TE.-For a State for ,,·hieh the Administrator is implementing a eoal eomlmstion residuals permit progl'am under subseetion 

(e)(1)(C), the State may adopt and implement 

SHell a permit pr'ogram b~'-

"(i) notii);ng the Administrator that 

the State will a(lopt and implement sHeh a 

permit p1'ogxam; 

"(ii) not later than () months aftcr thc 

date of suell notifieation, submitting to the 

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82182.092

F:\AEBIM13\SWDA\CCW\R\S3512_01.XML [Discussion Draft] 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

f:WHLCI0403131040313.145.xml 

Apri\3, 2013 (8:45 p.m.) 

.d.Jlministrator a certifieation under subseetion (lJ)(2); and 

"(iii) reeeiying from the Administrator-

"(1) a determination, after proyiding a :30-da~' period for notice and 

public eOlllllwllt, that the State coal 

combustion residuals permit program 

meets the specifications described in 

subsection (c); and 

"(II) a timeline for transition of 

eontrol of the coal eomllUstion residuals permit program. 

"(2) REYIE\y OF DETEH:lII:\'.\TIO:\'.-

"CAl DETEIUII:\'.\TIO:\, HE(~nHED.-The 

Administrator shall make a determinatioll 

ullder paragraph (1) not later than DO da~'s 

after the date 011 IYllieh the State submits a ce1'-

tificatioll under paragnlpb (1) (..'l.)(ii) or 

(1 )(C)(ii), 01' notifies the Administrator that the 

deficiC'llcies haye bet'n rernedier\ pursuant to 

paragTaph (1)(B)(i), as applieable. 

"m) REYIE\y.-A. State rna~' obtain a re-

,'iew of a dett'nninatioJ1 b~' the .Administrator 

under paragraph (1) as if sueb determination 

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82182.093

P:\AEB\M 13\SWDA \CCW\R\S3512_0J.XML [Discussion Draft] 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

fWHLCI0403131040313.145.xml 

April 3, 2013 (8:45 p.m.) 

was a final regulation for pnrposes of section 

7006. 

"(:3) LlIPLIDIK"'I'.\TIO:\" Dnn:\"G TH. ... \:'\SITIO:\".-

Actions takell or orders issued pursuant to a 

coal C'ombustion residuals permit program shall 

remain in eHeet if-

"(i) a State takes control of its coal 

eombustion residuals permit pT"06'Tam from 

the Administrator undE'r paragnlph (1); oj' 

"(ii) tile Administrator takes control 

of' a eoal eombustioll I'E'siduals permit pI'Ogram from a State under subsection (e). 

"(B) CIL\:'\GE 1:,\ ]{E(..1l·IRE~m:\"Ts.-Subparagraph (A) shall appl," to such aC'tions and 

orders until slwh time as the Administrator or 

the head of the lead State age]]('~' responsible 

for implementing the coal C'ombustion residuals 

permit program, as applienblc-

"(i) implplllE'nts ehanges to the re-

(luirelllents of tile coal comlmstioll residuals peJ'mit program "i.th respect to the 

basis for tile aetion or order; or 

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82182.094

F:\AEB'u'vl13ISWDA ICCWIRIS3512_0l.XML [Discussion Draft] 

:37 

"(ii) eertifies the C'ompletion of a eor2 reetiw aetion that is the suiJjeet of the ac3 tion or order. 

4 "(4) SJX(lLE PEIDIIT I'Iwmu;\I.-If a State 

5 adopts and implements a ('oal combustion residuals 

6 permit progTam nnder this subseetion, the Adminis7 trator shall ecase to implcment the permit program 

8 implemented under subseetion (e )(1) for sneh State. 

9 "(g) EFFECT OX DETEK\I1X.\TIOX Fxmm 4005(e) 

10 OR 300G.-The Administrator shall not eOllsider the im11 plemelltation of a eoal eombustioll residuals permit pro12 gnUll by the Administrator under subsec·tion (e) in makillg 

13 a determinatioll of appruml for a permit prog1'am or other 

14 s.'Tstem of prior approyal and eonditions under seetion 

15 4005(e) or of authorization for a progn1ll1 uncleI' seetion 

16 :300G. 

17 "(h) CLOSCHE.-

18 "(1) Ix UEXEJUL.-If it is determined, pUJ'su19 ant 10 a ('oal eombustion residuals permit program, 

20 that a strueture should elose, the time period and 

21 method for the elosure of suc'l! s1 meture shall be set 

22 forth in a elosnre plan that establishes a deadline for 

23 eompletion alHl that takes into aeeonnt the nature 

24 and the site-speeifie eharac'teristies of the strueiure 

25 to be' dosed. 

f:IVHLCI0403131040313.145.xml 

April 3. 2013 (8:45 p.m.) 

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41 


82182.095

F:\AEB\M 13\SWDA \CC\V\R\S3512_0l.xML [Discussion Draft] 

2 a surface impoundment, the closure plan 1111<ler 

3 paragraph (1) shall rl:'quirl:'. at a minimum, thr rr4 moyal of liquid aud till:' stabilization of remaining 

5 ,,-astr, as necrssary to support tl1i:' final cOYer. 

6 "(i) AerIIOHITY.-

7 "(1) ST.\TE ,\l-TIl()H1TY.-:~othing in this srr8 tion shall prl:'cll1dr or drny (U1~- right of any State to 

9 adopt or enfon'e an~- regulation or requirement rl:'-

10 speeting eoal eombustion residuals that is more 

11 stringent or hroader in seope than a regulation or 

12 requirement under this section. 

13 "(2) Al-TIIOHITY OF TIlE ,\D:\IIXISTRyroJ{.-

14 "(A) Ix OEXEIL\L.-Exeept as prmided in 

15 suhseetions (d) a11(1 (e) amI seetion 6005, the 

16 Administrator shall, ~Yith l'espeet to the regula17 tion of eoal eombllstioll resi(luals, defer to the 

18 States pursuant to this section. 

19 "(B) !:muxExT lL\ZAlm.-Nothing in this 

20 seetioll shall he C'ollstl'ued as affeeting the au21 thorit~- of the Administrator under seetion 70();3 

22 "itl1 respeet to eoal eombustion residuals. 

23 

24 

25 

fWHLC\040313\040313.145.xml 

April 3, 2013 (8:45 p.m.) 

l-POX HEQn~sT.-UpOIl request fi'om the head 

of a lead State agene~- that is implementing a 

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82182.096

F:\AEBu\113\SWDA\CCW\R\S3512_01XML [Discussion Draft] 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

:39 

('oal eomlmstion l'('siduals ]wnuit program, the 

Administrator llla~' prmide to such State agelley only til(' enfOI'eemellt assistmlC'e ]·equested. 

"(D) CO:\CTHllE:\T E:\],'OlWID!E:\T.-Exc('pi as prmided in suhparagraph (C), the Admillistrator shall not haw eOlleurrellt enforcelllellt allthorit~, ",Ilen a State is implementing a 

('oal eombustion residuals permit program. 

"(E) OTlIER ,\l:TllORlTY.-The Aclministrator shall not haw authority to finalize the 

p1'o))osrd rule published at pages :35128 

12 through :35264 of yolume 75 of the Federal 

13 l~eglster (.June 21, 2010). 

14 "(:3) C]TlZ}~:\ slTr;.;.-Nothing III this se('tioll 

15 shall be C'onstl11ed to affeet the authority of a person 

16 to COllunellce a eiyil ac·tion ill ae('ordanee with sec17 tion 7002. 

18 "(j) JUI:\E R}~CLA~L\TIO:\ ACTlYITlEN.-A eoal eOlll19 bustion residuals permit program implemented b~' the Ad20 miuistratol' under subseetiOl1 (e) shall not appl~- to the llti21 lization, plaeement, and storag'e of eoa] eomlmstion residu22 als at surface milling and reeimnatioll operations. 

23 "(k) DEFI:\ITIO:\s.-In this seetion: 

24 "(1) CO,\L C(nIBC',TlO:\' HESIDL\LS.-The 

25 term 'eon] eombustion residuals' meansf:IVHLC\040313\040313.145.xml 

April 3, 2013 (8:45 p.m.) 

(54572811) 
43 


82182.097

F:\AEBIM13ISWDAICCw\RIS3512_0I.XML [Discussion Draft] 

40 

"(A) the solid wasks listed ill section 

2 ilOOl(b)(:3)(A)(i), indnding reeoH'rable mate3 rials from suell "'astes; 

4 "(B) eoal combustion wastes that are eo5 managed with ,,,astes p1'oduee<1 in eonjunctioll 

6 with tile eombnstion of coal, pro1'ided that such 

7 wastes are not segregated and disposed of sepa8 ]'ately from the eoal C'ombnstion wastes and 

9 eOlll])1'ise a relatiwly slllall proportion of the 

10 total wastes beiug disposed in the struc·tu1'e; 

11 "(e) f1uidized be(l eomhustioll mtstes; 

12 "(D) wastes from the eo-burning of eoal 

13 with non-hazardous seeondary materials, p1'o14 yided that eoal makes up at least 50 perC'Pllt of 

15 the total fnel bmned; and 

16 "(E) wastes from the co-burning of coal 

17 ,,'ith materials dese1'ibe<i in subparagraph (A) 

18 that are reeowred from 111onofiIl8. 

19 "(2) ('0.\1, cmmn;TI():\ HENIDL\LS PEIDII'l' 

20 PHOGf{.D!.-The term 'eoal l'ombustion residuals 

21 permit program' means all of the authorities, aetiyi22 ties, and procedures that eOll1prise the s~'stem of 

23 prior approyal and eon<iitions implemented by or for 

24 a State to regulate the management and disposal of 

25 coal combustion residuals. 

f:IVHLCI0403131040313.145.xml 

April 3, 2013 (8:45 p.m.) 

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44 


82182.098

F:\AEB\M13ISWDAICCW\RIS3512_0l.xML [Discussion Draft] 

"(:3) CODE (ll<' FEDE]UL HEUCL.\TIO:\s.-The 

2 term 'CoM of Federal Regulations' means the COile 

3 of Federal Rq,..rulatioJ1s (as in effect on the date of 

4 enactnwnt of this section) or all~' suceessor l'egula5 tions. 

6 "(4) PEIDIIT; PHlOT{ .\PPHOYAI, .\:\D CO:\DI7 T1O:\S.-The terms 'permit' allli 'prior appronl and 

8 conditions' mean an~- authol'ization, license, or equiy9 alent eontrol <1oeument that ineorporates the re10 quirements and reyised eriteria deserihed in pal'a11 gTaphs (1) and (2) of subseetion (e), respeetiw·ly. 

12 "(,j) REY]SED CRITEHL\.-The term 're,ised 

13 criteria' means the eriteria promulgated for muuie14 ipal solid ,,-aste landfill ullits under seetion 4004(a) 

15 and llncipr sectio11 1008(a)(:3), as reyised uuder sec16 tion 4010(e). 

17 "(6) STH1T'ITHE.-

18 "(A) 1:\ OE:\EH.\L.-Exeept as jH'oyided in 

19 snbparagTaph (B), the term 'stmcture' means a 

20 landfill, sud'aee illlPoundment, or other lalHl21 based unit ,yhiC'h nHl~' receiw C'oal eomlmstioll 

22 I'esilluals. 

23 

24 

25 

f:IVHLCI0403131040313.145.xml 

April 3, 2013 (8:45 p.m.) 

"(B) DE \1I:\L\IlS HECEIPT,-The term 

'stmeture' (loes not illC'lude any land-based unit 

t bat reC'eiws onl~' de minimis quantities of eoal 

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82182.099

F:\AEBIM 131SWDA ICCW\RIS3512_01.XML [Discussion Draft] 

eomlmstion residuals if the presem'e of coal 

2 c-ombnstion residuals is incidental to the mate3 rial managed in the unit.". 

4 (b) CO:\,FOIUII:\'G A~m:\'m1E:\,T.-The table of C011-

5 tents contained ill sel'tion 1001 of the Solid Waste Dis6 posal Aet is amended by illsertillg after the item relating 

7 to sec-tion .f010 the following: 

"S('(', .J-O] 1. lUml<lg'(,11H'11t awl (lisl}()Sal of eiml ('omimstiOlll'('sidnals.", 

8 SEC. 3. 2000 REGULATORY DETERMINATION. 

9 Nothing' in this Aet, 01' the amendments made b~- this 

10 Aet, shall be eon8t1'ne(\ to alter in all~- manner the Emi11 ronmental Proteetion Agelle~"s rcgl1latory determination 

12 entitled "?\otiee of Regl1IatOI-:;- Determination on 'Wastes 

13 from the Combustion of Fossil Fuels", published at (15 

14 Fed. Reg. 322H (}\ra~- 22, 2000), that the fossil fuel COIll15 bustion wastes addressed in that determination do not 

16 ,\'arra11t regulation ullder subtitle C of the Solid \Vaste 

17 Disposal Act (42 1'.8.C. (1921 et seq.). 

18 SEC. 4. TECHNICAL ASSISTANCE. 

19 Nothing ill this .Aet, or the allwndments made by this 

20 Aet, shall be C'onstrned to affeet the authorit~- of a State 

21 to request, 01' the Administrator of the Emironmental 

22 Proteetion Agenc~- to prmide, teelmieal assistanee under 

23 the Solid Waste Disposal Aet (.f2 U.S.C. G901 et seq.). 

f:WHLC\040313\040313.145.xml 

April 3, 2013 (8:45 p.m.) 

(54572811) 
46 


82182.100

F:\AEB\M 13\SWDA \CCw\R\S3512_OlXML [Discussion Draft] 

SEC. 5. FEDERAL POWER ACT. 

2 Nothing in this Act, or the amendments made L~' this 

3 Act, shall he eonstI1led to afft'ct the obligations of the 

4 OW11er or operator of a struetun' (as defined in sectioll 

5 4011 of the Solid Waste Disposal Aet, as added by this 

6 Act) uuder seetion 215(b)(1) of the Pecieral Power Aet 

7 (1G lJ.S.C. 8:Ho(b)(1)). 

tIVHLC\0403131040313.145.xml 

April 3, 2013 (8:45 p.m.) 

(54572811) 
47 

Mr. SHIMKUS. So with that, I want to thank all our witnesses for 

being with us today, and I will recognize Ranking Member Tonko 

for 5 minutes for the purposes of an opening statement. 

OPENING STATEMENT OF HON. PAUL TONKO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK 

Mr. TONKO. Thank you, Mr. Chair. Good morning, everyone, and 

I thank our chair for holding this hearing on the discussion draft 

of the Coal Ash Recycling and Oversight Act. Thank you to our witnesses for participating in the hearing, and offering your thoughts 

on this legislation today. 

We have dealt with coal ash as long as we have been burning 

coal, a very long time. Coal ash can be beneficially reused. Recycling of coal ash is a well-established practice, but not all coal ash 

can be safely recycled, and when it is improperly used or disposed 

of, coal ash creates significant problems. 

The Environmental Protection Agency, the EPA, was charged 

with studying coal combustion residuals back in 1980 when the Resource, Reuse, and Recovery Act, RCRA, became law. It has been 

over 30 years, and communities in many states have experienced 

many problems from improper handling and disposal of coal ash. 

Spills from wet impoundments, windborne ash, and groundwater 

contamination have caused serious health and environmental problems, and required expensive clean up efforts. Five years after the 

catastrophic spill in Tennessee, we are still without reasonable regulations to safeguard communities and ensure proper treatment of 

this waste. 

It is long past time to resolve these issues and indeed move forward. We need a policy that ensures safe disposal of coal ash, provides clear guidance to state agencies, and the regulated industry, 

and an appropriate federal oversight role. Perhaps EPA can 

achieve that with regulation under the current law. If not, I believe 

we can develop a law that balances the concerns of all involved. 

The discussion draft does not meet these goals in its current form, 

so we have more work to do. 

I look forward to the testimony of our witnesses today, and their 

thoughts on this issue. I am willing to work with you, Mr. Chair, 

and our other colleagues to improve this legislation. Working together, I am convinced that we can move a bill forward that finally 

can provide a sound policy to deal with coal ash. 

And with that, I yield back. 

Mr. SHIMKUS. Gentleman yields back his time. Chair now recognizes the chairman of the full committee, Mr. Upton, for 5 minutes. 

OPENING STATEMENT OF HON. FRED UPTON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN 

Mr. UPTON. Well thank you. 

You know, our efforts to solve the coal ash certainly do continue 

with this hearing. We began the last Congress by asking should we 

allow EPA to write rules that would bind every state regardless of 

geography, hydrology, history, and economics, or should we allow 

the states to build and operate their own permitting systems? 

The answer that this committee reported, and which the House 

passed, both with bipartisan support, was a compromise. It gave 

48 

the choice to the states to apply minimum federal standards specified in the legislation itself, or a state could vacate the field and 

let EPA step in and run that state’s program directly. 

Mr. McKinley’s bill, H.R. 2273 passed the House with bipartisan 

support in October 2011. Building on the House-passed bill, Senators Hoeven and Baucus and a bi-partisan Senate group wrote S. 

3512. It preserved the approach of our House bill, but added more 

detail to the minimum federal standards. For example, it added a 

requirement that leaking surface impoundments meet a groundwater protection standard within a certain time period or they are 

required to close. That bill also included a requirement that all 

structures that receive coal ash after enactment install groundwater monitoring within one year after a state certifies its program. The bill was introduced on August 2 of last year with Senators Hoeven and Baucus and 12 Republicans and 12 Democrats as 

original co-sponsors, and the text of today’s discussion draft is actually the text of that bill, S. 3512. 

Now, we are eager to hear from our witnesses today as they 

focus on the details of the legislation before us. We welcome suggestions to improve the text for sure, however, we do prefer to preserve the signature approach of the bill: minimum statutory standards implemented by the states. 

We welcome our first witness, Mr. Stanislaus, and thank him for 

sure for testimony that is quite useful as it directly addresses the 

legislation. That is what this legislative hearing is intended to do. 

We know that he would like to resolve the coal ash issue as well, 

and we appreciate that good will. 

The dispute about how to regulate coal ash ties up EPA in court 

and prevents all parties from moving forward. This legislation aims 

to help settle that litigation. 

We also welcome our state environmental officials. We look forward to learning from them how they will develop certified programs that EPA can approve, and whether the nuts and bolts of 

the bill are tight enough to make the vehicle work in the real 

world. 

I also expect the witnesses to answer questions about details of 

the legislation. Are the minimum federal standards the right ones? 

How do they compare with what the EPA proposed? Should we consider some type of timeline for state implementation? Do the states 

welcome the approach set out in the discussion draft? 

[The prepared statement of Mr. Upton follows:] 

PREPARED STATEMENT OF HON. FRED UPTON

Our efforts to solve the coal ash issue continue. We began the last Congress by 

asking: Should we allow EPA to write rules that would bind every state regardless 

of geography, hydrology, history, and economics, or should we allow the states to 

build and operate their own permitting systems? 

The answer that this committee reported, and which the House passed, both with 

bipartisan support, was a compromise. It gave the choice to the states to apply minimum federal standards specified in the legislation itself, or a state could vacate the 

field and let EPA step in and run that state’s program directly. Mr. McKinley’s bill, 

H.R. 2273 passed the House with bipartisan support in October 2011. 

Building on the House-passed bill, Senators Hoeven and Baucus and a bi-partisan 

Senate group wrote S. 3512. It preserved the approach of our House bill, but added 

more detail to the minimum federal standards. For example, S. 3512 added a reVerDate Nov 24 2008 15:21 Sep 17, 2013 Jkt 037690 PO 00000 Frm 00054 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 113\113-29 CHRIS
49 

quirement that leaking surface impoundments meet a groundwater protection 

standard within a certain time period or they are required to close. 

S. 3512 also included a requirement that all structures that receive coal ash after 

enactment install groundwater monitoring within one year after a state certifies its 

program. S. 3512 was introduced on August 2, 2012, with by Senators Hoeven and 

Baucus and 12 Republicans and 12 Democrats as original co-sponsors. The text of 

today’s discussion draft is actually the text of S. 3512. 

We are eager to hear from our witnesses today as they focus on the details of the 

legislation before us. We welcome witnesses’ suggestions to improve the text. However, we do prefer to preserve the signature approach of the bill: minimum statutory 

standards implemented by the states. 

We welcome Mr. Stanislaus and thank him for testimony that is quite useful as 

it directly addresses the legislation. That’s what a legislative hearing is for. We 

know that he would like to resolve the coal ash issue. The dispute about how to 

regulate coal ash ties up EPA in court and prevents all parties from moving forward. This legislation aims to help settle that litigation. 

We also welcome our state environmental officials. We look forward to learning 

from them: 

• how they will develop certified programs that EPA can approve; and 

• whether the nuts and bolts of the bill are tight enough to make the vehicle work 

in the real world. 

I also expect the witnesses to answer questions about details of the legislation— 

Are the minimum federal standards the right ones? How do they compare with what 

EPA proposed? Should we consider some type of timeline for state implementation? 

Do the states welcome the approach set out in the Discussion Draft? 

Thank you to all our experts for joining us today as we work to resolve this important issue. 

# # # 

Mr. UPTON. I appreciate the good work by Chairman Shimkus, 

and yield the balance of my time to Mr. McKinley from West Virginia. 

Mr. MCKINLEY. Thank you, Mr. Chairman, for the time that you 

have given me on this. 

Let me just kind of paraphrase again much of what you have 

heard so far on this, is that the creation of fly ash, it is an unavoidable byproduct of burning coal. You get this product, this little 

dust. It is just an unavoidable byproduct. So I guess the fight here 

would be if we don’t want to have this product, then we don’t burn 

coal, but that is not realistic. 

So what has happened over here is we have developed about 140 

million tons of this fly ash annually. Forty percent of it is recycled, 

and 60 percent goes to landfills. But the 40 percent that has been 

recycled, it has been blessed by the EPA as a nonhazardous material and should be used. As a matter of fact, under Bill Clinton, the 

’93 and the 2000 reports both came out and supported it. So the 

40 percent issue should be moot. 

The real issue, then, is the disposal. How do you dispose of this 

product? Perhaps the argument, when it really comes down to it, 

do we want to have the Federal Government have primacy or 

should the states have primacy? The groups that recycle, labor 

unions, utilities, coal operators, state environmental groups, all the 

stakeholders in this think that the best way to do it is to have the 

state have primacy, but what I like about in this bill is that we actually begin with the federal standard. There is a minimum standard that is going to be set forth, and the states have to apply that. 

If they don’t adhere to that, then the Federal Government does 

take primacy. So let’s make sure that we understand that if this 

50 

bill doesn’t pass, then what we are going to do is we are going to 

be back to, once again, what has been talked about for the last 30- 

some years, arguing over this while we have fly ash that is created 

every day all across America, is going to landfills that are not approved. Some of them, some states have no certified landfill requirements. Do we want to continue that or not? 

It is time this bill gets passed, and I am particularly pleased, 

from what I am hearing from the other side and from the EPA is 

that this may very well be the year to do it, that we can find a 

compromise, and I appreciate very much the testimony that you 

are about to give and how we can work together to make this resolve, because this is not right for people to fear this is being disposed of in their backyard and they don’t—there are no standards. 

It is time that we have standards and adhere to them, and we can 

do that. 

So this legislation is important and I think it is going to resolve. 

I hope, after 30-some years, we are finally going to resolve this 

problem. 

So with that, Mr. Chairman, I yield back my time. 

Mr. SHIMKUS. Gentleman’s time is expired. Chair now recognizes 

the ranking member of the full committee, Mr. Waxman, for 5 minutes. 

OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Mr. WAXMAN. Thank you, Mr. Chairman. Today, the subcommittee examines the discussion draft that would govern the disposal of coal ash, the toxic-laden residual waste from burning coal. 

The language isn’t new. It is almost identical to the bill reported 

by this committee in the last Congress without ever being examined in a legislative hearing. It is identical to the language that 90 

percent of Democrats opposed when it was considered on the House 

Floor in September of last year. It is the same language that has 

been exhaustively analyzed by the Congressional Research Service 

and found severely wanting. And it is the same language that has 

failed to get sufficient support in the United States Senate. 

Over the years, Congress and the states have developed a proven 

model for environmental protection that has successfully reduced 

pollution and enhanced the protection of the public health. We had 

a hearing on that model of environmental federalism just 2 months 

ago, and heard from stakeholders that it continues to work well. 

States have received delegation for just over 96 percent of the environmental programs that can be delegated. This is an impressive 

track record that has protected the American people from pollutioninduced respiratory diseases, from contaminates in their drinking 

water, from toxic environmental exposures that can cause cancers 

and other diseases. 

Despite these successes, the discussion draft we consider today 

would abandon the proven models of environmental protection and 

adopt an approach that we have every reason to believe would fail 

if enacted. This proposal will not ensure the safe disposal of coal 

ash. It will not prevent groundwater contamination from unlined 

ash ponds or prevent coal ash impoundments from failing cataVerDate Nov 24 2008 15:21 Sep 17, 2013 Jkt 037690 PO 00000 Frm 00056 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 113\113-29 CHRIS
51 

strophically. It will not allow EPA to complete its rulemaking to 

identify the disposal criteria necessary to protect human health 

and the environment. 

I continue to oppose such an approach and believe that there is 

simply not the support for this proposal to become law. But as I 

have said for 2 years now, I am willing to work with the Majority 

on this issue to get a law, if the chairman wants a law. 

That would require rethinking this legislation and listening to 

the expert views available to us. EPA, and the Congressional Budget Office, the Congressional Research Service all have relevant expertise on this legislation. Their views must not be dismissed and, 

in fact, relying on their expertise will only help us craft a much 

better piece of legislation. 

I believe this is an issue we should be able to resolve. We can 

provide certainty and reasonable standards that would work for industry. And at the same time, we can ensure that health and the 

environment are protected. 

But what we should avoid is remaining gridlocked on a stale proposal. That won’t stop dangerous coal ash dumping. It won’t prevent toxic contamination from leaking into the groundwater and 

surface water. And it won’t promote beneficial reuse of coal ash. 

Whether it is by administrative or legislative action, it is time to 

resolve this issue and ensure the safe disposal of coal ash. Environmental groups and the biggest recycler of coal ash in the country 

have sued EPA to complete their regulatory process and get a rule 

finalized. 

Mr. Chairman, I hope we can work together on this issue. And 

if not, I hope EPA will move expeditiously to establish strong 

standards that ensure the safe disposal of coal ash. 

I yield back my time. 

[The prepared statement of Mr. Waxman follows:] 

PREPARED STATEMENT OF HON. HENRY A. WAXMAN

Today, the Subcommittee examines a discussion draft that would govern the disposal of coal ash—the toxic-laden residual waste from burning coal. 

This language isn’t new. It is almost identical to the bill reported by this Committee in the last Congress without ever being examined in a legislative hearing. 

It is identical to the language that 90% of Democrats opposed when it was considered on the House floor in September of last year. It’s the same language that has 

been exhaustively analyzed by the Congressional Research Service (CRS) and found 

severely wanting. And it’s the same language that has failed to get sufficient support in the U.S. Senate. 

Over the years, Congress and the states have developed a proven model for environmental protection that has successfully reduced pollution and enhanced the protection of the public health. We had a hearing on that model of environmental federalism just two months ago and heard from stakeholders that it continues to work 

well. 

States have received delegation for just over 96% of the environmental programs 

that can be delegated. This is an impressive track record that has protected the 

American people from pollution-induced respiratory diseases, from contaminants in 

their drinking water, and from toxic environmental exposures that can cause cancers and other diseases. 

Despite these successes, the discussion draft we consider today would abandon the 

proven models of environmental protection and adopt an approach that we have 

every reason to believe would fail if enacted. This proposal will not ensure the safe 

disposal of coal ash. It will not prevent groundwater contamination from unlined 

ash ponds or prevent coal ash impoundments from failing catastrophically. It will 

not allow EPA to complete its rulemaking to identify the disposal criteria necessary 

to protect human health and the environment. 

52 

I continue to oppose such an approach and believe that there is simply not the 

support for this proposal to be become law. 

But as I have said for 2 years now, I am willing to work with the majority on 

this issue to get a law if the Chairman wants a law. 

That would require rethinking this legislation and listening to the expert views 

available to us. EPA, the Congressional Budget Office, and CRS all have relevant 

expertise on this legislation. Their views must not be dismissed and in fact relying 

on their expertise will only help us craft a much better piece of legislation. 

I believe this is an issue we should be able to resolve. We can provide certainty 

and reasonable standards that work for industry. And at the same time, we can ensure that health and the environment are protected. 

What we should avoid is remaining gridlocked on a stale proposal. That won’t stop 

dangerous coal ash dumping. It won’t prevent toxic contamination from leaking into 

the ground water and surface water. And it won’t promote beneficial reuse of coal 

ash. 

Whether it’s by administrative or legislative action, it is time to resolve this issue 

and ensure the safe disposal of coal ash. Environmental groups and the biggest recycler of coal ash in the country have sued EPA to complete their regulatory process 

and get a rule finalized. 

Mr. Chairman, I hope we can work together on this issue. And if not, I hope EPA 

will move expeditiously to establish strong standards that ensure the safe disposal 

of coal ash. 

Mr. SHIMKUS. Gentleman yields back his time. 

Now we would like to welcome our first witness, the Honorable 

Mathy Stanislaus, who is the Assistant Administrator for the Office of Solid Waste and Emergency Response with the U.S. EPA. 

Sir, welcome. Your full statement is in the record. You will have 

5 minutes. We have, obviously, a newer time system there with the 

green, the yellow, and the red, and—but we are going to be very 

generous, and based upon the comments in the opening statements, 

we really look forward to hearing your opening statement because 

we are going to get input from the EPA here. 

You are recognized. 

STATEMENT OF THE HONORABLE MATHY STANISLAUS, ASSISTANT ADMINISTRATOR FOR OFFICE OF SOLID WASTE 

AND EMERGENCY RESPONSE, U.S. ENVIRONMENTAL PROTECTION AGENCY (EPA) 

Mr. STANISLAUS. Good morning, Mr. Chairman and members of 

the subcommittee. I am Mathy Stanislaus, Assistant Administrator 

for the Office of Solid Waste and Emergency Response at the 

United States Environmental Protection Agency. Thank you for the 

opportunity to testify today on the committee’s legislative discussion draft, the Coal Ash Recycling and Oversight Act. 

Coal combustion residuals, or CCRs, are one of the largest waste 

streams generated in the United States, with approximately 136 

million tons generated in 2008. CCRs contain constituents, such as 

arsenic, cadmium, and mercury, which can pose threats to public 

health and the environment, if improperly managed. 

At the time, EPA issued its proposed coal ash rule, EPA had documented evidence of damages to groundwater or surface water in 

27 cases, 17 cases of damage to groundwater, and ten cases of damage to surface water. In addition, EPA identified 40 cases of potential damage to groundwater or surface water. In the majority of 

cases, damages to groundwater or surface water were associated 

with the lack of standards necessary to protect the environment, 

particularly the use of unlined impoundments and units and the 

failure to monitor these impoundments and other associated units. 

53 

EPA also had documented evidence of a number of damage cases 

due to the catastrophic structural failure of coal ash impoundments, such as at the Martins Creek Power Plant in Pennsylvania, 

and the TVA Kingston facility in Harriman, Tennessee. The sudden 

failure of a surface impoundment retaining wall at the TVA Kingston facility in December 2008, and the resulting catastrophic spill 

of coal ash and their impacts on the community highlight the issue 

of impoundment stability. 

Since EPA’s proposed rule was issued, a number of additional reports have been submitted to EPA by several organizations that 

identified dozens of additional damage cases. In addition, for states 

that have begun to require groundwater monitoring of surface impoundments, in almost all cases, groundwater contamination has 

been identified. Thus, it appears, based on all of EPA’s information, 

improper management of coal ash in landfills and surface impoundments will continue to pose a threat to human health and the environment. 

Regarding beneficial use, coal ash can provide environmental 

benefits and new applications may provide even greater benefits, 

based on current studies. Some of the information confirms or 

strengthens EPA’s views on the benefits of coal ash reuse. However, some information indicates that certain uses may raise concerns and merit additional attention. 

Some beneficial uses are in an encapsulated form, while other 

are in an unencapsulated form. EPA believes that the great bulk 

of beneficial uses, particularly in an encapsulated form, such as 

concrete and wallboard, do not raise concerns and offer important 

environmental benefits. However, some questions have been raised 

regarding the lack of clear methodology to evaluate reuse of coal 

ash. Thus, EPA’s proposal sought additional information and requested specific comment on certain aspects of beneficial use of coal 

ash. 

To help resolve questions regarding the environmental consequences of beneficially using coal ash, EPA has developed a draft 

methodology, which can be used to determine whether encapsulated products containing coal ash are comparable to analogous 

non-coal combustion residual products. It will also develop a draft 

application report for the use of coal fly ash in concrete and the use 

of FGD gypsum in wallboard as replacement materials. The draft 

application report is currently undergoing formal internal peer review. EPA is also developing a draft methodology for evaluating 

current unencapsulated beneficial uses of coal ash. We expect to 

issue both of them in the fall. 

Now turning to the committee’s legislative discussion draft, it establishes a framework for the management of coal ash, recognizing 

the documented damages associated with the mismanagement of 

coal ash support the need for action to address those risks. EPA believes that the proper management of coal ash requires nationally 

consistent standards necessary to protect human health and the 

environment. These standards should address the installation and 

use of liners for new units and allow expansions of existing units, 

provide standards that control airborne dust and particulate matter, address the phase out of unlined surface impoundments within 

a reasonable period of time, require groundwater monitoring for 

54 

new and existing facilities, include location criteria, provide for corrective action where contamination or releases to the environment 

have been identified, including criteria for maintenance and 

structura stability of dams, address standards for closure and postclosure, and address the issues of financial assurance. The discussion draft addresses many of the areas I have just discussed. However, the discussion draft could be clarified in some important 

areas, including timelines for the development and implementation 

of state programs, criteria to help EPA determine when a state program is deficient, criteria for coal ash unit structural stability, 

deadlines for closure of unlined or leaking units, including inactive 

or abandoned units, and the universe of units subject to the permit 

program. 

Mr. Chairman, should Congress decide to address the regulation 

of coal ash through legislation, EPA stands ready to assist in that 

effort to help ensure that legislation establishes a regulatory 

framework to regulate the management of coal ash in a nationally 

consistent manner that fully protects human health and the environment. 

Thank you, and this concludes my prepared remarks. 

[The prepared statement of Mr. Stanislaus follows:] 

55 


82182.001

Testimony of Mathy Stanislaus 

Assistant Administrator 

Office of Solid Waste and Emergency Response 

U.S. Environmental Protection Agency 

Before the Subcommittee on Environment and Economy 

Committee on Energy and Commerce 

United States House of Representatives 

April 11, 2013 

Mr. Chairman and members of the Subcommittee, thank you for the opportunity to testifY 

today on EPA's regulatory efforts and on Congressional legislative efforts to address coal 

combustion residuals (CCRs). My testimony provides our views regarding key elements to 

address the safe management ofCCRs. 

As discussed in our proposed rule I, CCRs are one of the largest waste streams generated 

in the United States, with approximately 136 million tons generated in 2008. Of this, 

approximately 34% (46 million tons) are landfilled; approximately 21 % (29 million tons) are 

disposed of in surface impoundments; approximately 37% (50 million tons) are beneficially 

used; and approximately 8% (II million tons) are placed in mines. CCRs contain constituents, 

such as arsenic, cadmium, and mercury, which can pose threats to public health and the 

environment, if improperly managed. The Agency continues to obtain information on damage 

cases around the country, which demonstrates that the improper management ofCCRs, poses a 

threat to public health and the environment. Thus. proper management ofthis waste stream is 

essential to protecting public health and the environment. 

1 Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion 

Residuals From Electric Utilities; Proposed Rule, 7S FR 35128~3S264, June 10, 2010. 

1 
56 


82182.002

IMPROPER MANAGEMENT OF CCRS 

At the time, EPA issued its proposed CCR rule (on June 21, 2010), EPA had documented 

evidence of damages to groundwater or surface water in 27 cases, 17 cases of damage to 

groundwater, and ten cases of damage to surface water. All but one of the proven damage cases 

to groundwater involved disposal in unlined units. In the remaining unit, there was not enough 

information as to whether or not the unit had a liner. In addition, EPA identified 40 cases of 

potential damage to groundwater or surface water. In the majority of cases, damage to 

groundwater or surface water were associated with practices such as the use of unlined 

impoundments/units and the failure to monitor those impoundments/units. 

EPA also had documented evidence ofa number of damage cases due to the catastrophic 

structural failure of the CCR impoundments, such as at the Martins Creek Power Plant, Martins 

Creek, Pennsylvania and Tennessee Valley Authority (TVA) Kingston facility, Harriman, 

Tennessee. The sudden failure of a surface impoundment retaining wall at the TVA Kingston 

facility in December 2008, and the resulting catastrophic spill of coal ash, highlighted the issue 

of impoundment stability. In response, EPA developed a proposed rule that would establish 

regulatory requirements designed to ensure proper management of this waste stream, including 

measures to prevent future catastrophic releases, as well as other types of environmental impacts 

associated with the disposal of CCRs in landfills and surface impoundments. 

Since EPA's proposed rule was issued, a number of additional reports have been 

submitted to EPA by several environmental organizations that identified dozens of additional 

damage cases that these organizations believe resulted from the potential mismanagement of coal 

combustion residuals; these reports were made available for comment on October 12,2011. In 

addition, for states that have begun to require groundwater monitoring of surface impoundments, 

2 
57 


82182.003

in almost all cases, groundwater contamination has been identified. Thus, it appears, based on 

information received in response to the proposed rule, that without proper management, the 

disposal of coal combustion residuals in landfills and surface impoundments can pose a threat to 

human health and the environment. 

EPA received more than 450,000 comments on the proposed rule, which raised a number 

of complex issues. In addition, as part of the rulemaking effort, EPA solicited and received 

additional technical data. The information, technical data, and comments the agency received on 

the proposal will help inform the final rule. 

BENEFICIAL USE 

The beneficial use of CCRs can provide environmental benefits and new applications 

may provide even greater benefits, based on current studies. Some of the information confirms 

or strengthens EPA's views on the benefits ofCCRs. However, some information indicates that 

certain uses may raise concerns and merit additional attention. 

Evaluations of beneficial use can be quite complex, in that some of these uses are in an 

encapsulated form, while other uses are in an unencapsulted form, and any evaluation of the 

potential risks of these uses must take these differences into account. EPA believes that the great 

bulk of beneficial uses, particularly in an encapsulated form, as in concrete and wallboard, do not 

raise concerns and offer important environmental benefits. However, some questions have been 

raised about the use ofCCRs in the environment an unencapsulated form. Thus, EPA's proposal 

sought additional information and requested specific comment on certain aspects of the 

beneficial use of coal combustion residuals. 

3 
58 


82182.004

We recognize that questions regarding the environmental consequences of beneficially 

using CCRs have been raised. To help address these questions, EPA is in the process of 

developing a methodology, which can be used to detennine whether encapsulated products 

containing CCRs are comparable to analogous non-coal com bustion residual products, as well as 

a draft application report utilizing the draft methodology for the use of coal fly ash in concrcte 

and the use of FGD gypsum in wallboard as replacement materials. EPA is also developing a 

draft methodology for evaluating current unencapsulated beneficial uses of CCRs. 

CCR LEGISLATION 

The Discussion Draft of the Coal Ash Recycling and Oversight Act appears to establish a 

framework for the management ofCCRs. The documented damages associated with the 

mismanagement ofCCRs support the need for action to address those risks. We support the 

development, implementation, and enforcement of appropriate standards for facilities managing 

coal ash, while encouraging the beneficial use of this economically important material. The 

proper management ofCCRs should include clear requirements that address the risks associated 

with the coal ash disposal and management, consideration of the best science and data available, 

adequate evaluation of structural integrity, protective solutions for existing as well as new 

facilities, and appropriate public infonnation and comment. 

The Discussion Draft of the Coal Ash Recycling and Oversight Act addresses some of the 

principles discussed above for effective CCR management. Although the Discussion draft 

contains key provisions that require states to implement CCR programs that address specific 

contaminants, address leaking surface impoundments and, require the establishment of 

groundwater monitoring, we note that it does not clearly address timelines for the development 

4 
59 


82182.005

and implementation of state programs, criteria for EPA to use to determine when a state program 

is deficient, criteria for CCR unit structural integrity, deadlines for closure of unlined or leaking 

impoundments/units, including inactive or abandoned impoundments/units, and the universe of 

CCR disposal units subject to a permit program including impoundments, landfills, waste piles, 

pits and quarries, and other disposal scenarios. 

CONCLUSION 

The regulation of CCRs raises complex issues - from the scientific analyses to public and 

regulatory policy. Should Congress decide to address the regulation of CCRs through 

legislation, EPA stands ready to assist in that effort to help ensure that legislation establishes a 

regulatory framework to regulate the management ofCCRs in a nationally consistent manner 

that fully protects human health and the environment. 

5 
60 


82182.006

Testimony 

Subcommittee on Environment and the Economy 

Committee on Energy and Commerce 

Thursday, April 11,2013 

by 

Robert 1. Martineau, lr. Commissioner 

Tennessee Department of Environment and Conservation 

and 

Secretary-Treasurer, Environmental Council of the States 

Main Points 

I. The states have collectively taken a position outlining how to address coal combustion 

residuals through an ECOS resolution. 

2. ECOS supports congressional legislation that comports with the provisions of our 

resolution. 

3. The CRS report re-released in March 2013 contains several criticisms of the legislative 

report which I address from a state agency leader point of view. 
61 

* As indicated in the Preamble of EPA’s coal combustion residuals proposal, the Agency’s 

RCRA Subtitle D option references criteria for solid waste disposal facilities and practices found 

in 40 CFR Part 257. EPA’s proposal can be found on the Agency’s web site at: http:// 

www.epa.gov/wastes/nonhazlindustrial/special/fossil/ccr-rule/ 

Mr. SHIMKUS. Thank you very much, and I think your opening 

statement and your submission is very helpful in us moving forward, and I appreciate that. 

So I will recognize myself for the first 5 minutes of opening questions. 

Mr. Stanislaus, doesn’t the legislation in the discussion draft give 

EPA continuing watchdog role to ensure that state permit programs meet the minimum federal requirements? 

Mr. STANISLAUS. Thank you, Congressman. As I noted in my oral 

statement, there is a role for EPA to oversee the implementation 

of a state program, and in my oral statement I noted that for the 

clarity as to how EPA would execute that function is something 

that we could provide technical assistance regarding that. 

Mr. SHIMKUS. Great, thank you. And you could, based upon the 

discussion draft, take over a state permit program if the state fails 

to correct identified deficiencies, based upon the discussion draft, is 

that correct? 

Mr. STANISLAUS. Yes, and thank you, Congressman. Again, referring back to my oral statement, there is a provision, as I understand the intent of that, for EPA to review and take over in certain 

circumstances. As noted in my oral statement, clarity as to those 

circumstances for EPA to conduct that function would be beneficial. 

Mr. SHIMKUS. Yes, and I think the discussion draft basically 

identifies a base standard, and I think it is pretty clear, and I 

think you are alluding to that cautiously that based upon that language, as presented, if passed and signed into law, if it is deficient 

in those base standards, you would have the authority. 

So let me go to didn’t the EPA state in the proposed rule that 

40 C.F.R. part 258, the revised criteria for municipal solid waste 

landfills would be a framework for regulating coal ash? 

Mr. STANISLAUS. In the proposed rule? 

Mr. SHIMKUS. That the revised criteria that you all have are proposed that using the municipal solid waste as a guideline would be 

a proper way of evaluating and moving CCR materials into, obviously, sites? 

Mr. STANISLAUS. Congressman, I am not familiar with the specific reference. Let me check that and—— *

Mr. SHIMKUS. Well, and I would just obviously—the preamble of 

the proposed rule basically says that, does it not? 

Mr. STANISLAUS. Again, I don’t have that in front of me but I will 

check and put that into the record. 

Mr. SHIMKUS. I think if you read the preamble, the answer will 

be yes, it does. And so our point is, this is not new. We are pretty 

close on how we need to get to where we need to get to, and we 

just want to continue to work with you and clean up some stuff. 

But EPA is pretty much on the record on at least four provisions 

of this legislation and the ability to have a guideline, the ability of 

you all to preempt if the states don’t meet the guidelines, but the 

ability of the states to actually—to operate this, and that is what 

the legislation intends on doing. 

62 

Consensus seems to be emerging in support of coal combustion 

residuals being dealt with under a nonhazardous regulatory framework. Do you agree? 

Mr. STANISLAUS. Well, again I mean with respect to—regarding 

the legislation, I mean, so again, I think there are areas of further 

clarification regarding how the coal ash management should be executed. 

Mr. SHIMKUS. Are you prepared to give us any—in this legislative hearing any words and clarifications that might be acceptable, 

or are we prepared to do this after the hearing and in discussions 

with you all and committee staff? I mean, how—if we are not asking these questions and not going to glean from you what areas 

and language that would be helpful in perfecting the language, 

when do we have a chance to do that, especially in an open forum? 

Mr. STANISLAUS. Sure. Well again, we will provide specific details 

in our technical assistance role, and so there are areas, as I noted 

in my oral statement, that could be improved and so I think it will 

be helpful for me and my staff to work with your staff providing 

details regarding potential areas of—— 

Mr. SHIMKUS. OK, let me—my time is running out. EPA cannot 

issue enforceable permits under Subtitle D, is that correct? 

Mr. STANISLAUS. That is right. 

Mr. SHIMKUS. And from an enforcement standpoint, isn’t it better 

for facilities to operate under an enforceable permit instead of a 

self-implementing regulation or regulations that are only enforceable through citizen suits? 

Mr. STANISLAUS. Well as I understand the legislation, it does provide that the states would issue a permit and oversee that, and—— 

Mr. SHIMKUS. Isn’t that preferable than fighting through the 

courts and having citizen suits across the country trying to delineate this, clearing this up, and putting a responsible party involved? And this, as we will hear from the state regulators, they 

are willing, ready, and capable, and do, in fact, all states except for 

Florida and South Dakota, are part of ECOS, even New York and 

California and Massachusetts, and they all agree with this approach. 

Mr. STANISLAUS. Yes, EPA, under Subtitle D, the states do, in 

fact, go forward and implement in sum through a permit program. 

Even under the other titles, EPA delegates that authority, so there 

are many circumstances where states do—in fact, we rely on the 

states to implement the solid waste programs. In many cases, that 

is done through a permit program and enforced by the states. 

Mr. SHIMKUS. Perfect. Thank you. 

Now I would like to yield to the ranking member, Mr. Tonko, for 

5 minutes. 

Mr. TONKO. Thank you, Mr. Chair, and thank you, Assistant Administrator Stanislaus for testifying today. 

EPA has proposed two alternative regulatory approaches to address the risks posed by unsafe disposal of coal ash. Both approaches include requirements to address failures of wet impoundments, dust from ash landfills, groundwater contamination, and 

other potential risks. The Subtitle D proposed rule includes detailed technical criteria developed by EPA to protect human health 

and the environment from the risks associated with CCR disposal. 

63 

Getting these technical criteria right is critically important because 

they ensure that coal ash disposal sites are structurally sound and 

don’t pollute the air or pollute the water. Proponents of the discussion draft that we are considering today have said that the draft 

contains many of the appropriate criteria, but I have concerns that 

significant safeguards are missing. 

In the last Congress, EPA provided this committee with technical 

assistance on whether legislation similar to the draft we are considering today included all of the elements necessary to protect 

human health and the environment. So I would like to ask a few 

questions to understand whether the new draft addresses those 

concerns. 

First, EPA’s technical assistance states that under the language 

we considered in the last Congress, EPA would not be authorized 

to develop criteria tailored to the specific risks of coal ash disposal. 

Does the discussion draft we are considering today address that 

shortcoming? 

Mr. STANISLAUS. So are you referring to the technical assistance 

for last year’s House bill or the Senate bill? 

Mr. TONKO. The House bill. 

Mr. STANISLAUS. My understanding is the draft discussion is 

based on the Senate bill. Is that not correct? So let me get back 

to you in terms—I mean, if you are asking a comparison of technical assistance on the Senate bill I can get back to you regarding 

what we provided on the Senate bill. I can provide that to you, but 

generally as noted in my oral statement, there are areas that we 

are willing to work with you and the committee in terms of areas 

of further clarification in the areas I have articulated. 

Mr. TONKO. OK, and EPA’s technical assistance states that the 

structural integrity requirements in the previous language were deficient because they did not address the full volume of liquid to be 

stored? Did the changes in this discussion draft address those deficiencies? 

Mr. STANISLAUS. Yes, speaking to the discussion draft, it does address liquids and what we have said is that—further clarification 

as to the standard for which structural integrity would be judged 

against. The further clarification would be beneficial. 

Mr. TONKO. And EPA’s technical assistance states that the previous language did not include the longstanding operating criteria 

for wet impoundments developed by the Mine Safety and Health 

Administration. Does this discussion draft apply these criteria? 

Mr. STANISLAUS. My understanding is that it does not, that there 

is a provision requiring good engineering practices as the basis of 

structural integrity. 

Mr. TONKO. And EPA’s technical assistance states that under the 

previous language, dry landfills would not be required to comply 

with many of the operating criteria that currently apply to municipal solid waste and would be applied to coal ash under EPA’s proposed rule. Does this discussion draft fix that flaw with the previous proposal? 

Mr. STANISLAUS. I am not sure about that. 

Mr. TONKO. OK, is there a way that you can get back to us? 

Mr. STANISLAUS. Yes, I can review that and get back to you. 

Mr. TONKO. OK. That would be most appreciated. 

64 

Thank you for your response, Mr. Stanislaus. Let me just indicate, this proposal eliminates EPA’s rulemaking authority and replace’s the agency’s expertise with that of this panel, so it is essential that we get these disposal criteria correct. I hope that the committee will engage with you as we move forward to address these 

and other deficiencies in this legislation. I believe it is absolutely 

critical that as we assist those in the industries involved with the 

guidelines, with the certainty, and with the policy initiated here 

that we can get things done to work in the best order possible. 

So with that, I see my time is almost expired and I yield back. 

Thank you, Mr. Chair. 

Mr. SHIMKUS. Gentleman yields back his time. Chair now recognizes the gentleman from Texas, Mr. Barton, for 5 minutes. 

Mr. BARTON. I am not going to use 5 minutes. I am going to ask 

one question and then I will yield to Mr. McKinley or Mr. Johnson 

or back to the chairman. 

I missed most of your verbal statement, but my question is pretty straightforward. Does the EPA have an official position on the 

discussion draft, and if they do, what is it? 

Mr. STANISLAUS. We do not have an official position. In my oral 

statement, I have noted there are areas that the bill does, in fact, 

advance the basic requirements we believe are necessary for safe 

coal ash disposal and areas of further clarification that we are willing to work with the committee to expand upon. 

Mr. BARTON. Could you characterize the EPA’s position is wishing to cooperate with the committee on this bill, or wanting to be 

confrontational? 

Mr. STANISLAUS. We are absolutely willing to cooperate. 

Mr. BARTON. All right. Thank you, sir, and I would yield to whoever you want me to. 

Mr. SHIMKUS. I would claim your time. 

Mr. BARTON. OK, I yield back to the chairman. 

Mr. SHIMKUS. Thank you, and I would just like to follow up in 

that question. So EPA is not taking a position of opposition to the 

language—to the bill? 

Mr. STANISLAUS. That is right. 

Mr. SHIMKUS. OK, and I think that is important. 

I will just continue. Let me ask, on the legislation, doesn’t the 

legislation require issuance of enforceable permits to all coal ash 

disposal facilities? 

Mr. STANISLAUS. My understanding of the legislation is that the 

states would be—would implement the program to issue permits, 

so the area of further clarification is kind of—clarification regarding timeline of that. 

Mr. SHIMKUS. And I think that is something we could—I mean, 

my understanding of your testimony is that there are four things 

you kind of like. There are six provisions that you think we could— 

we need to look at, one of those being establishing a timeline. 

But—and so I think that is something I think we can be helpful 

and work on, but it is my understanding on the issue of the question that it—the way the language is drafted is that we do require 

enforced—now you might question the standard of enforcement— 

not even standards, because we believe the states can enforce it. 

We may have a question of what are the standards, right? 

65 

Mr. STANISLAUS. Yes. 

Mr. SHIMKUS. But I don’t think there is any dispute in the language that there would be—and I am just making sure I say it 

properly—that there is an issuance requirement and enforceable 

permits that—in this draft language. 

Mr. STANISLAUS. I believe the language or the intended language 

is to put in place a permit program, an implemented permit program, and again, assuming we could address the timing question 

is also the—what universe it would apply to, so—people are giving 

me notes. 

Mr. SHIMKUS. Me too. 

Mr. STANISLAUS. I think one of the areas is the definition of what 

is covered, yes. 

Mr. SHIMKUS. OK. Let me ask, is a Subtitle C rule still on the 

table? 

Mr. STANISLAUS. Well again, Congressman, we have noted in my 

testimony, we are evaluating a number of comments, about 430,000 

comments and data, and also there is additional data which will inform the risk and the management—the preferred management 

mechanism to address that. So the additional data which we would 

want the public to review before we make a decision, we want to 

get that out to the public and then that will inform which is the 

best technique, given all the considerations. 

Mr. SHIMKUS. So for the public, moving on legislation could actually create a quicker standard of protection versus waiting for a 

process going through your due diligence? 

Mr. STANISLAUS. It could. 

Mr. SHIMKUS. All right. What is the agency’s—do you have any 

timing? I guess that is a follow-up to legislation could be quicker 

when you have timing? 

Mr. STANISLAUS. I don’t have a specific timeframe in mind, and 

we have laid out in filings that we will have some idea in about 

6 months in terms of—based on the ability to get public input on 

this data, but we will—it is not that we will be able to act in 6 

months, but in 6 months, based on the data being submitted to the 

public for review and comment. 

Mr. SHIMKUS. So I guess—again, let me just follow up. We believe that legislation would help you all deal with the pending CCR 

deadline. You are currently in litigation. You are involving—and I 

can answer that question, but I think that is a thing that we can 

debate and discuss. 

So with that, Mr. Barton’s time is expired, which I was able to 

use, and I now yield to the chairman emeritus of the full committee, Mr. Dingell for 5 minutes. 

Mr. DINGELL. Mr. Chairman, I thank you for your courtesy. This 

is a very useful hearing. It reminds me, however, of a Greek tragedy. I see us sitting here like the chorus and anticipating that terrible calamities are about to come and we don’t know what to do 

about it. Well, there is a way out of this thicket, and I want to commend you for having the hearing, because I think this might just 

be a beginning. 

Having said this, I have got a bunch of yes or no questions and 

I hope that you will respond, referring to the witness. 

66 

On other waste issues, states create their plans within a certain 

timeframe and with certain federal requirements that they are obligated to meet, is that right? 

Mr. STANISLAUS. I am sorry, could you repeat that question? 

Mr. DINGELL. I will dispense with that question. Do you believe 

this draft bill has the timelines and minimum legal standards of 

protection to ensure that proper program plans are implemented in 

the states? Yes or no. 

Mr. STANISLAUS. Well, that is one of the areas that I noted in my 

oral statement—— 

Mr. DINGELL. Yes or no. 

Mr. STANISLAUS. —that could be clarified. 

Mr. DINGELL. OK. Could you submit additional records or information for the record? 

Mr. STANISLAUS. Sure. 

Mr. DINGELL. And I don’t want to see you toe dancing around. 

Take a firm stance here, because the situation stinks and quite 

honestly, the legislation is not good. 

This bill would legislatively create regulatory requirements. 

Under a normal regulatory process, if these requirements such as 

a legal standard for protection, needed to be updated or to better 

address the issue, there would be a comment period to obtain input 

from industry, stakeholders, and the public, isn’t that right? 

Mr. STANISLAUS. Yes, my understanding of the draft legislation—— 

Mr. DINGELL. Yes or no. 

Mr. STANISLAUS. My understanding of the draft legislation is 

that the—— 

Mr. DINGELL. I have limited time. Please say yes or no. There is 

no requirement in this bill that any future changes should go 

through a public comment process, is that right? 

Mr. STANISLAUS. Again, my understanding of the legislation is 

that in implementing the program by the state, it is subject to public input and comment. However—— 

Mr. DINGELL. You are not being helpful, sir. Under EPA’s proposed rule to establish requirements to address this issue, in your 

testimony you said that EPA received nearly a half million public 

comments, solicited public data, started drafting a methodology to 

evaluate the beneficial uses. Under the legislative proposal before 

us, would EPA have the authority to gather public comments, technical data, or develop methodologies in the future to improve the 

implementation of the program proposed in the bill? Yes or no? 

Mr. STANISLAUS. My understanding of the legislation is that the 

legislation would prescribe to the states to implement a program 

and a permit thereafter. 

Mr. DINGELL. All right. Submit additional information for the 

record. 

What four or five national standards do you believe should be 

specifically addressed and added to this legislation to ensure that 

there is national conformity amongst several states? 

Mr. STANISLAUS. Yes, as I noted in my—— 

Mr. DINGELL. Would you submit that for the record? 

Mr. STANISLAUS. Sure, absolutely. 

67 

Mr. DINGELL. Now do you believe this legislation as currently 

written would require these standards to be included in state program plans? Yes or no? Would you please submit that for the 

record? 

Mr. STANISLAUS. Sure. 

Mr. DINGELL. Mr. Chairman, from what I am seeing today it appears there is much we need to do to prevent spills like that experienced in Tennessee and more recently in Wisconsin when we had 

a tremendous—of nastiness flowing into Lake Michigan. I am just 

a poor Polish lawyer from Detroit, but I would remind members of 

the subcommittee that we are not engineers and we must give EPA 

the flexibility to implement appropriate performance standards 

without having to come back to Congress for approval. Traditionally, Congress and this committee have given EPA authority to develop regulations and to address particular issues, but this bill 

jumps straight to the regulations without knowing whether the 

regulations are sound or not. And I am concerned that we may be 

setting, quite frankly, a most disturbing precedent, one which is inconsistent with the Administrative Procedures Act, and it allows 

regulations to be set without the extensive public comments and 

technical data that are needed from industry and from stakeholders. I hope my friends on the other side will recognize that we 

are imposing a congressional straight jacket on the EPA and the 

administrators of this program. The end result will be, if we are 

right, it might be fine. That is most unlikely. The probabilities are 

we are going to find we are wrong. We have no flexibility here that 

I can discern. EPA can’t find any, and we are not getting much 

help from the witness, but it is urgently necessary that we consider 

these facts and that we do these things intelligently. 

The industry has got a legitimate complaint. We ought to hear 

it. We ought to do something about it. But we ought not jump 

blindly in and set a bunch of standards about which we know nothing and simply prolong the problem and increase litigation that is 

going to curse us if we pass the bill as it now is. 

I look forward to working with you, and I hope you will cooperate 

with me in trying to get a bill that makes some sense. Thank you. 

Mr. SHIMKUS. I thank my colleague. Every time I hear from the 

poor Polish lawyer, I check my wallet. 

So with that, I would like to recognize the author of last Congress’ legislation, and the member who is intimately involved with 

this, Mr. McKinley for 5 minutes. 

Mr. MCKINLEY. Thank you, Mr. Chairman, and again, thank you 

for appearing before the committee. 

You are right. This thing has been hanging for 30-some years, 

and we passed a bill 2 years ago, we passed a bill a year ago, we 

are back at it again. If we continue with this, with being 

stonewalled, I guess, that argument of making perfect the enemy 

of good and we do not pass a bill, can you help paint the picture 

of what happens? Won’t we continue to be disposing of fly ash in 

the way they did it in the ’40s and the ’50s, because there are some 

states that have no regulations whatsoever on this? So if we don’t 

do something, aren’t we really challenging people as a result? 

Mr. STANISLAUS. I agree, Congressman. As I noted in my oral 

statement, the ongoing damages that are occurring and past damVerDate Nov 24 2008 15:21 Sep 17, 2013 Jkt 037690 PO 00000 Frm 00073 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 113\113-29 CHRIS
68 

ages from, particularly, the unlined impoundment kind of scenario 

and the particular—the requirements that I have articulated in my 

oral statement, things like lining, things like monitoring are things 

that will be necessary to protect against those risks. So I think we 

do need some action. 

Mr. MCKINLEY. What about the—are you—I think I heard you 

make some remarks earlier in your opening statement that the 40 

percent that we recycle, the beneficial recycling, you are still of an 

opinion that we should be able to continue to beneficially recycle 

about 40 percent of the product? 

Mr. STANISLAUS. Yes, I believe it is 37, but yes, close to 40. 

Mr. MCKINLEY. So if this legislation doesn’t go through—and I 

want to paint probably the worst picture would be—I believe isn’t 

there litigation now? 

Mr. STANISLAUS. There is litigation now. 

Mr. MCKINLEY. OK, and that litigation wants you to call this a 

hazardous material? 

Mr. STANISLAUS. My understanding of the litigation is to—for 

EPA to move forward on a timeline for regulating the disposal of 

coal ash, yes. 

Mr. MCKINLEY. Under a hazardous waste landfill? 

Mr. STANISLAUS. Let me get back to you. I don’t believe it is prescriptive in that way. 

Mr. MCKINLEY. I thought there was something to that effect that 

would label it, and I just know that if something were hazardous, 

then none of us should be using that. We shouldn’t use it in 

drywall; we shouldn’t use it in concrete if it is hazardous. We do? 

Mr. STANISLAUS. If it is hazardous, no. 

Mr. MCKINLEY. But I think EPA has already determined that it 

is not a hazardous material. We just need to make sure that we 

dispose of it and recycle it in a way that is appropriate. So I have 

watched now over 2 years—it is my second term here—how it has 

matured in this conversation with the EPA a relationship that we 

can probably work this thing through, because it does us no good 

if we continue with the other side, I suppose it would be, not to 

work with us to come up with a piece of legislation because that 

was my earlier comment. If we don’t do it, we are going to have 

areas that people could feel threatened. Their homes could be challenged, I suppose, a whole series of things, unless we get something 

approved. I am hoping that we get some good cooperation and compromise and work together to come up with a piece of legislation. 

I am very encouraged from your remarks earlier today and what 

we have heard over the last few months, that there is some chance 

we are going to get something accomplished this year, and we 

won’t continue this 30 years of uncertainty. 

So you are telling me that you think we will be able to come up 

with something this year? 

Mr. STANISLAUS. I am not in the prediction business, but my 

commitment is that we will work with you, Congressman and the 

committee, in terms of the areas that I have articulated in my oral 

statement. 

Mr. MCKINLEY. Some of the recommendations I hope that we will 

take into consideration. That is what we did last time. We had a 

hearing like this on the original bill and then we modified it after 

69 

we heard from people. I don’t think any of us are afraid to make 

changes to a piece of legislation. We are trying to get it right. I 

want to get this resolved, and I like the history and the ideology 

that people are putting out there about that they would rather 

have nothing than have something that moves in the right direction. 

So I thank you very much and I yield back the balance of my 

time. 

Mr. SHIMKUS. Gentleman yields back his time. Chair now recognizes the gentlelady from California, Ms. Capps, for 5 minutes. 

Mrs. CAPPS. Thank you, Mr. Chairman, for calling this hearing. 

I thank you, Mr. Stanislaus, for your testimony. 

As you know, this proposal passed the House in the last Congress, despite serious concerns about whether it would sufficiently 

protect the health of people living near coal ash disposal sites. In 

technical assistance you provided to the committee last Congress, 

you identified multiple principal contaminants of concern in coal 

ash, including arsenic, cadmium, lead, mercury, and many others. 

These heavy metals pose very serious threats to human health. 

Would you, for our hearing today, please identify briefly some of 

the health effects of these contaminants? 

Mr. STANISLAUS. Well, let me commit to get back to you on the 

record in terms of all the contaminants we have identified in the 

bill in terms of the specific health impacts. 

Mrs. CAPPS. Just generally, the ones that I have mentioned came 

from the list you provided last time, arsenic, cadmium, lead, mercury. Can you just identify a few of those health—— 

Mr. STANISLAUS. Well, not getting into the specifics of each of the 

contaminants, so—— 

Mrs. CAPPS. Right. 

Mr. STANISLAUS. —generally, you could have—depending on the 

contaminant and the contaminant level, you could have some developmental issues, sometimes non-cancerous and cancerous. It all depends on the particular contaminant you are talking about. So 

what I can do is after the hearing provide a breakdown of each of 

the contaminants and the various health impacts, based on the 

level of exposure. 

Mrs. CAPPS. I would appreciate that for the record, but I think 

that there is a sense of urgency that we get something done, because these are very serious health threats. We need to address 

them in a good piece of legislation because the lives of people in 

the area—surrounding areas depend on it. 

I will just turn to a little bit different way of asking a similar 

question. In your proposed rule for coal ash disposal, EPA identified three main pathways of exposure to these contaminants. First, 

leaching from unlined units, second, direct uncontrolled discharges 

in the case of a structural failure of an impoundment, and third, 

fugitive dust emissions. So, to further the record, would you discuss, please, some of the primary public health and environmental 

impacts that these three types of coal ash exposure can create? 

Mr. STANISLAUS. Well, those are the exposure pathways, so those 

are—those identify how a person would be exposed. 

Mrs. CAPPS. Right. 

70 

Mr. STANISLAUS. And so the various categories of health consequence would occur from that exposure, be it developmental, noncancer, or cancer. So you can have different kinds of health impacts, depending on whether it is inhalation, whether it is ingestion. 

Mrs. CAPPS. Right. 

Mr. STANISLAUS. So I don’t have that breakdown, but I can provide it. Depending on the pathway of exposure, the particular contaminant and the kinds of health impacts, I can provide that for 

the record. 

Mrs. CAPPS. So am I right then in drawing the conclusion that 

there are multiple kinds of exposure with kinds of multiple serious 

health effects, because some of it is from the dust, some of it is 

from the discharge, some of it is from leaching. I mean, different 

ways that it can enter the environment that a person’s health can 

be directly affected by it, would that be a fair assessment? 

Mr. STANISLAUS. That is correct. If it is improperly managed, you 

can be exposed in multiple different ways, so if you don’t have effective controls of dust, you could inhale it. If you don’t have effective controls of leaching, it could get into the groundwater and you 

could drink that. So it could be multiple and different, depending 

on whether it is managed well or not. 

Mrs. CAPPS. Thank you. 

And finally, I want to follow up on the storage liners issue. My 

question is, will any kind of liner work to prevent leaching, or are 

there certain technical specifications that must be met? 

Mr. STANISLAUS. Well clearly, it depends on the type of liner and 

then also ensuring that the liner is within a management framework, meaning a monitoring program and oversight program. 

Mrs. CAPPS. So it is not—and first of all, not any kind of liner 

will work, it has got to be some specified kind of liner. You don’t 

have to go into the details here if you don’t have that information, 

but there has been work to uncover and figure out what that kind 

of liner is? Am I correct? 

Mr. STANISLAUS. There are industry standards in terms of—— 

Mrs. CAPPS. There are industry standards. 

Mr. STANISLAUS. Yes, the nature and particular materials for 

that liner. 

Mrs. CAPPS. OK, so there has already been research done? 

Mr. STANISLAUS. And implemented in certain parts of the country. 

Mrs. CAPPS. And implemented already, and studied to see if it 

is effective? 

Mr. STANISLAUS. Yes, yes. 

Mrs. CAPPS. OK. Well, the conclusion that I draw is that there 

are some robust specifications already and I am led to conclude 

that these are very serious concerns, and I hope that my colleagues 

will work with these technical experts at EPA—I hope we all will— 

to ensure that we address each of these exposure pathways appropriately and sufficiently and have that be part of the legislation 

that comes so that the bill will have some teeth in it and it will 

be effective in finally addressing this particular challenge. And I 

am looking across the aisle, because this is going to take the efforts 

of all of us to make sure that these standards are met. 

71 

I yield back the balance of my time. 

Mr. SHIMKUS. Gentlelady’s time is expired. 

I would just say that in this draft is really the Senate bill from 

last year, which is changed from ours, so it does have the groundwater, it does have the dust, it does have the levy issues and 

standards. It also—and Mr. Stanislaus mentioned previously that 

the technical considerations—this is part of the Senate bill, so some 

of the observations is based on the old house bill, not this draft bill 

which is part of the Senate language. That is safe to say, I think. 

So I would like to yield, and I apologize to the gentleman from 

Ohio. He should have went previous to the gentleman from West 

Virginia, but I am just scared of the guy from West Virginia, so to 

recognize Mr. Latta for 5 minutes. 

Mr. LATTA. Thank you very much, Mr. Chairman. I appreciate it, 

and I greatly appreciate your testimony today and welcome you before the committee. 

You know, having served in the Ohio General Assembly, I truly 

believe that the states really know their citizens need better than 

the Federal Government, and also the states also believe that we 

have got to protect not only our citizens’ health, but also the environment, while at the same time ensuring job creation and growth, 

not only in Ohio, but across the country. 

Ohio currently requires permits for both coal ash landfills and 

surface impoundments, and have continuously worked to improve 

the requirements, including those for liners and groundwater monitoring. Additionally, the Ohio Department of Natural Resources 

has its own program to monitor and prevent impoundment failure. 

Because of the quality of the program, Ohio EPA considers the risk 

of catastrophic failure of Ohio coal ash surface impoundments to be 

low. As you can see, Ohio, like many other states, has quality coal 

ash management measures already in place, and I believe that the 

Coal Ash Recycling and Oversight Act of 2013 will allow them to 

continue this ability. 

If I could ask you this first question, given the measures that 

Ohio and other states have or are working on right now and are 

currently putting into place, do you believe the states have that 

ability to ensure proper management and disposal of coal ash 

under the proposed legislation? 

Mr. STANISLAUS. Oh, absolutely. I mean, there are many examples. I don’t know— I can’t tell you at this moment specifically 

about Ohio’s program. There are many examples of states doing a 

really good job on coal ash management. There are also other situations where even the states would acknowledge that there are 

places where it has not been effectively managed. Even a state survey among state waste managers has concluded that there are 

areas that are not managed well. I can’t talk specifically about 

Ohio’s program. 

Mr. LATTA. OK, well thank you. 

And to ask kind of a follow-up and as to other questions that the 

gentlelady from California was mentioning a little bit earlier about 

liners, and if I could ask a couple questions in regards of the EPA 

would like to discuss. Do you agree that the bill contains a provision for requiring liners? 

72 

Mr. STANISLAUS. Yes, my understanding that the bill does require a provision for liners, and again, my oral statement is that 

there are particular—one of them is where additional clarity as to 

how that will be implemented would be helpful. 

Mr. LATTA. OK, and do you also agree that the bill contains a 

provision requiring groundwater monitoring? 

Mr. STANISLAUS. Congressman, my understanding is that the bill 

would require groundwater monitoring. 

Mr. LATTA. OK. Do you agree that the bill has a deadline for the 

installation of the groundwater monitoring? 

Mr. STANISLAUS. Congressman, my understanding that there is 

a deadline for installing groundwater monitoring. 

Mr. LATTA. OK, thank you. Do you agree that the bill includes 

all of the constituents identified by the EPA as being of concern for 

coal ash? 

Mr. STANISLAUS. I believe that is correct. Let me verify, but I believe that is correct. Let me verify it and place a statement on the 

record. 

Mr. LATTA. OK, thank you. Doesn’t the bill set a timeline for 

meeting the groundwater protection standards for surface impoundments that are incorrective? 

Mr. STANISLAUS. That is something I am not sure is clear, but 

let me—— 

Mr. LATTA. If you could get with us on that, it would be great. 

Mr. STANISLAUS. Yes. 

Mr. LATTA. Do you agree that the bill requires control of fugitive 

dust? 

Mr. STANISLAUS. It does have a provision for fugitive dust control, and again, it could be another area where further clarification 

of how it would be implemented could be beneficial. 

Mr. LATTA. OK. Does the bill require financial assurance? 

Mr. STANISLAUS. That is something I am not sure. 

Mr. LATTA. OK, if you want to get back with us on that, we 

would appreciate it. 

And doesn’t the bill contain location restriction for coal ash management and disposal units? 

Mr. STANISLAUS. I think that is another area where I think it 

could be further clarified. It is a bit ambiguous to us. 

Mr. LATTA. OK, and then with my remaining time, in your opinion, has the EPA developed a risk assessment that supports a determination that coal ash should be regulated under Subchapter C 

or Subtitle D—excuse me, Subtitle C or Subtitle D? 

Mr. STANISLAUS. Yes, as noted earlier, there is substantial additional data that has been provided to us by multiple stakeholders 

that will inform our risk assessment, and so we are now in a position to move soon—will be, hopefully, to make that judgment. So 

based on that, it will inform the best management regime to safely 

address the risks that we have identified. 

Mr. LATTA. Well thank you very much, and Mr. Chairman, I will 

yield back the balance of my time. If the witness could provide us 

with those answers, I would appreciate it. 

Mr. STANISLAUS. Sure. 

73 

Mr. SHIMKUS. Gentleman yields back his time. The chair now 

recognizes the gentleman from California, Mr. McNerney, for 5 

minutes. 

Mr. MCNERNEY. Thank you, Mr. Chairman. I certainly wouldn’t 

want to live downstream of a coal ash waste disposal site, but the 

conflict seems to be between federal authority and state authority, 

and the question I have is some states are going to do a good job. 

Some states may not do as good a job. If a site is leaking and poses 

a danger to the people in the groundwater, et cetera, does the EPA 

have sufficient authority in this bill to go in and take steps to remediate the situation? 

Mr. STANISLAUS. Well as I understand, the program would require the states to set forth a permit program and then implement 

the permit program to oversee that. In terms of EPA as well, that 

is one of the areas I noted earlier that can be further clarified as 

to under what circumstances it could play a role in the oversight. 

Mr. MCNERNEY. So basically you are saying that there is not— 

it is not sufficiently clear in the proposal what is—when the EPA 

should and can step in? 

Mr. STANISLAUS. Yes, it can be further clarified, and we are willing to provide technical assistance on potential areas of clarification and some analogies to other programs that we have had that 

role and where we work in partnership with the states to do that. 

Mr. MCNERNEY. Is that something that the EPA is working with 

this committee to try and clarify the language? 

Mr. STANISLAUS. We can, absolutely. 

Mr. MCNERNEY. Mr. Chairman, is that something that you are 

looking forward to doing? 

Mr. SHIMKUS. If the gentleman would yield, I would say that the 

discussion draft addresses ponds that are unlined and leaking, and 

the bill requires unlined leaking impoundments to meet groundwater protection standards within a certain time period, or close. 

Is that correct? 

Mr. STANISLAUS. Yes, there are closure requirements, and again, 

they could be further clarified as to the timeline and what is the 

trigger for closure. 

Mr. MCNERNEY. So regaining my time then, in an emergency situation, would the EPA have the authority to go in and take the 

steps that are necessary to remediate the danger? 

Mr. STANISLAUS. Yes, again, under the legislation that is an area 

that could be further clarified in terms of EPA’s role, and clearly, 

there are situations where there is imminent substantial 

endangerment, under our authorities, we can and we have gotten 

involved to address those emergencies. 

Mr. SHIMKUS. So the answer is yes is what he is saying. 

Mr. MCNERNEY. It didn’t sound like yes to me, Mr. Chairman. 

Now, the EPA doesn’t have the authority—moving to the planning and design stage, to impose design standards, is that correct? 

Mr. STANISLAUS. My understanding of the draft framework is 

that it will be up to the states to determine the details regarding 

that through their permit program. 

Mr. MCNERNEY. Do you—you used the word ‘‘encapsulated’’ several times in your oral testimony. Could you explain what that 

means? 

74 

Mr. STANISLAUS. Sure. It simply means in the beneficial use 

world, coal ash can be beneficially used in circumstances where essentially it is fixed, like in wall board, like in concrete, and there 

are other areas where it is not fixed, fill operations as an example, 

agricultural use. So there are a variety of areas of its utilization, 

so in terms of developing methodology, addressing how it is safely 

used, we have to look at how it is used and not just the methodology currently developed, and with the first set of methodologies 

to be encapsulated, and we anticipate that to be issued in the fall. 

Mr. MCNERNEY. Well then encapsulated means commercially viable encapsulation. It doesn’t mean encapsulated specifically for the 

purpose of disposing it safely? 

Mr. STANISLAUS. Yes, I use that terminology not relating to the 

disposal regime, as it relates to just beneficial use. 

Mr. MCNERNEY. Now some toxic wastes are encapsulated, say, in 

a glass container that won’t leak for many thousands of years. Is 

that prohibitive in this case for coal ash because the volume is too 

big, or is there some way to encapsulate it so that it can be disposed of safely for generations? 

Mr. STANISLAUS. Well, the framework for safe disposal is a combination of a lining system and a monitoring program, and we believe that can effectively address the risks that we have identified. 

Obviously, you have to look at also addressing fugitive dust or fugitive dust control systems as well. 

Mr. MCNERNEY. So is that what you described, the lining, the 

groundwater monitoring, was that the 2000 proposal with the 

EPA? Was that included in that 2000 proposal? 

Mr. STANISLAUS. Those elements were included in that. 

Mr. MCNERNEY. OK. Thank you, Mr. Chairman. 

Mr. SHIMKUS. Thank you. Chair now recognizes the gentleman 

from Ohio, Mr. Johnson, for 5 minutes. 

Mr. JOHNSON. Thank you, Mr. Chairman. Mr. Stanislaus, thanks 

for being with us today. 

Does CRCLA give EPA’s authority the authority to address inactive or abandoned impoundments or units? 

Mr. STANISLAUS. Generally CERCLA provides that if there’s a 

threat from hazardous waste, its authorities can be used. I am not 

sure specifically where we used that in an impoundment scenario, 

but I can check and get back to you. 

Mr. JOHNSON. Inactive or abandoned? Not active ones, but inactive or abandoned. 

Mr. STANISLAUS. Yes, let me check and determine whether we 

used that and whether we can use that. 

Mr. JOHNSON. If you could respond back in writing, that would 

be great. 

Mr. STANISLAUS. Sure. 

Mr. JOHNSON. Also, Mr. Stanislaus, following Kingston, EPA inspected coal ash impoundments, some 600 of them, in fact, to make 

sure that they are structurally sound. You hired independent contractors who in the agency’s own words are experts in the area of 

dam integrity. Do you agree with the findings of your staff that not 

a single coal ash impoundment was rated unsatisfactory and poses 

an immediate safety threat? 

75 

Mr. STANISLAUS. You know, I have to go back and look cumulatively of our postings, but we have done an assessment and we 

didn’t believe there was a scenario where there was a threat of imminent failure, and it is a combination of looking at how it is designed, an inspection, and there was some recommendation to do 

some additional enhancements to prevent risk. 

Mr. JOHNSON. But none was rated unsatisfactory and none posed 

an immediate safety threat? Do you agree? 

Mr. STANISLAUS. Let me check and put it on the record. 

Mr. JOHNSON. OK, if you could check and get back to us on that 

also. 

Do you agree with the findings of your professional staff as well 

that the owners and operators of impoundments with identified deficiencies have responded responsibly by submitting response action plans? 

Mr. STANISLAUS. Yes, I will go verify that and place it on the 

record. 

Mr. JOHNSON. OK, so you can get back to us with all of that? 

Mr. STANISLAUS. Sure. 

Mr. JOHNSON. Mr. Chairman, with that, that is all my questions. 

I yield back. 

Mr. SHIMKUS. Gentleman yields back his time. Chair now recognizes gentleman from Mississippi, Mr. Harper, for 5 minutes. 

Mr. HARPER. Thank you, Mr. Chairman, and thank you for being 

here. I know this always fun, but we appreciate your time and expertise. These are important issues and we need to make sure we 

stay on top of this. 

You know, EPA has direct enforcement authority for municipal 

solid waste only when the agency determines that a state program 

is inadequate. The bill adopts essentially the same approach. Why 

is the approach not acceptable for coal ash? 

Mr. STANISLAUS. Well, as I noted earlier, there is—there are provisions for EPA to review a state program, the state’s implementation program. Further clarity as to how it will conduct its review 

and under what circumstance it could engage a state’s improvement of that or take it over, that is where there is some ambiguity. 

Mr. HARPER. OK. You know, EPA has suggested that it would 

measure the adequacy of existing state programs based on whether 

groundwater monitoring was required. The bill requires groundwater monitoring, as you were asked and affirmed earlier, for all 

structures that receive coal ash. That is correct, isn’t it? 

Mr. STANISLAUS. Well, I think what the bill states that it requires groundwater monitoring for facilities that receive coal ash 

after the effective date of the legislation. So one of the areas of 

clarification as to what are the universe that will be subject to the 

groundwater requirements? 

Mr. HARPER. You know, EPA’s proposed rule suggests the importance of having state coal ash permit programs address surface impoundments and require liners. The bill requires regulation of surface impoundments and liners for all new and expanded land disposal units, doesn’t it? 

Mr. STANISLAUS. I believe for those units that receive waste after 

the enactment date. 

Mr. HARPER. OK. 

76 

Mr. STANISLAUS. That is correct. 

Mr. HARPER. All right. Mr. Chairman, I yield back the balance 

of my time. 

Mr. SHIMKUS. Chair thanks the gentleman, and then the chair 

recognizes the gentleman from Louisiana, Mr. Cassidy, for 5 minutes. 

Mr. CASSIDY. I yield back. 

Mr. SHIMKUS. That is the quickest 5 minutes I have ever had as 

chairman, and the chair thanks you. 

Seeing no other members, Mr. Stanislaus, thank you for your testimony. We are going to try to get you to yes a little bit clearer. 

I think we have made great progress since the last Congress, and 

we look forward to working with you and we thank you for your 

time. 

I would like to ask the second panel to join us. 

Mr. STANISLAUS. Thank you, Mr. Chairman, and thank you, 

members. 

Mr. SHIMKUS. We would like to get started as promptly as possible, so we would like to thank the second panel for joining us. 

Many of you have been here before and seen the process. I will recognize you in order from left to right. I will do it, you will be given 

5 minutes for an opening statement, and your full statement has 

been submitted for the record. We will begin. 

First I would like to recognize Mr. Robert Martineau, Jr., Commissioner from the Tennessee Department of Environment and 

Conservation. Sir, you are recognized for 5 minutes, and welcome. 

STATEMENTS OF ROBERT J. MARTINEAU, JR., COMMISSIONER, 

TENNESSEE DEPARTMENT OF ENVIRONMENT AND CONSERVATION; STEPHEN A. COBB, P.E., CHIEF, GOVERNMENTAL HAZARDOUS WASTE BRANCH LAND DIVISION, ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT; 

SUSAN PARKER BODINE, PARTNER, BARNES & THORNBURG, 

LLP; LISA EVANS, SENIOR ADMINISTRATIVE COUNSEL, 

EARTHJUSTICE; AND JACK SPADARO, MINE SAFETY & 

HEALTH AND ENVIRONMENTAL CONSULTANT 

STATEMENT OF ROBERT J. MARTINEAU, JR. 

Mr. MARTINEAU. Thank you, Mr. Chairman, and thank you to 

the committee for the invitation to be here today to discuss the 

issues about coal ash combustion and the legislation. 

I am here today representing the Environmental Council of 

State, or ECOS, whose members are the leaders of state and territorial environmental protection agencies, and my own State of Tennessee. Currently I serve as the—on the executive council of ECOS 

as secretary/treasurer. 

The incident that occurred in Kingston, Tennessee, in 2008 obviously made coal ash management an issue of national attention. I 

am here today to talk about the position that the states have on 

collectively—on how to best move forward with regulation of coal 

ash. 

ECOS adopted a formal resolution on this issue, first passed in 

2008, and reaffirmed last month at our spring meeting. I have atVerDate Nov 24 2008 15:21 Sep 17, 2013 Jkt 037690 PO 00000 Frm 00082 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 113\113-29 CHRIS
77 

tached that to my written testimony and ask that it be made part 

of the record. 

In short, our ECOS resolution agrees with the multiple studies 

that EPA has conducted over many years and three administrations, that coal ash is not a hazardous waste and should not be regulated as such. ECOS also agrees with EPA’s 2005 finding that the 

states should continue to be the principal regulatory authority for 

regulation of coal ash. We recognize that there are some significant 

beneficial reuses for coal ash, and we support those. While some 

may suggest otherwise, regulation of coal ash as a hazardous waste 

would have an extreme chilling effect on the beneficial reuse of coal 

ash in concrete road bed material and other uses. 

While we believe the states are the appropriate regulatory authority for coal ash, we also recognize there is some benefit for a 

national consistency approach. Therefore, ECOS has supported the 

bipartisan efforts of the House and Senate in the last Congress to 

create a federal program that allows states to regulate coal ash 

management and disposal under a set of federal standards created 

directly by Congress and implemented by the states. This is a new 

and thoughtful approach in regulation. 

ECOS sees this approach in this bill as a new path forward for 

federal involvement in some of the environmental challenges we 

face. We live in an era of constrained resources in government at 

both the federal, state, and local level. Challenges like coal ash 

would benefit from a new partnership model between the state and 

the Federal Government. 

The discussion bill today sets standards that protect human 

health and the environment, and provides the states the opportunity to implement, enforce, and supplement the standards that 

are most applicable for each state. If a state chooses not to implement the CCR program, then EPA can and will. States can ask for 

technical assistance from EPA, should they need it, and EPA is required periodically to assess and evaluate the states’ implementation of those programs. If necessary, EPA can assume control of 

any state program if the state is unsuccessful in implementing 

those standards. Because the bill does not require EPA to promulgate the rules, but creates the standards directly in the legislation, 

there are fewer delays in the program’s startup, and there is an additional savings to the Federal Government. 

Obviously, any new proposed partnership in management of coal 

ash is subject to constructive criticism. I would like to briefly address a couple of the criticisms identified in the Congressional Research Service report. 

First, the report noted that last year’s bill lacked a time table for 

implementation and other deadlines. While there are a number of 

time tables for closure and groundwater monitoring upgrades in 

the statute, there are a reasonable well-defined schedule for the 

states to actually adopt the rules as necessary and develop the permit programs. It would certainly be reasonable. States are used to 

dealing with that as they implement other federal programs. This 

time table would allow states to pass state rules, set up their regulatory programs, or supplement the ones they already have to get 

the permit program up and running to the extent they don’t have 

one. 

78 

Second, the CRS report also implied that a lack of direct EPA enforcement authority would make it less likely for the states to implement a program. I think that is simply contradicted by the 

record. ECOS has gone on record saying that they desire to run 

the—regulate coal ash at the state level. It is certainly not the case 

for Tennessee, and I don’t think it would be the case for any other 

states. 

A third criticism in the standards is that you can only set these 

kinds of standards through promulgation of rules. We believe Congress can create the basic standards for coal residual management, 

and the references to some of the existing regulatory requirements 

under part 258 are already set forth in the standard and would be 

encompassed in setting forth the basic criteria that states would 

have to implement. Obviously, states can choose to do more if they 

need to do so to address particular geographic or other conditions 

in the state. 

Lastly, there is skepticism that EPA will be able to judge the 

states’ performance on coal ash programs that would be created by 

this bill. EPA has been judging state air, water, and waste programs for 40 years through the delegation of programs. ECOS continues and the state agencies continue to interact with EPA every 

single day on the adequacy of their programs, and I don’t think 

this program would be any different. The key is not to judge 

whether a state would implement the program exactly as EPA 

would, but whether the state has created an effective program for 

regulation that is consistent with the statute. A state must certify 

in detail to EPA that it has the equivalent statutory and regulatory 

authority to operate its CCR management and disposal program, 

including permitting, inspections, monitoring, review of site data, 

and enforcement. If the state falters, EPA can warn it. If the state 

fails, then EPA can take the program. This is the same authority 

that EPA has with all other delegated state programs. 

I will close with a quotation from the March CRS report that I 

think is accurate and appropriate here. ‘‘That a coal ash regulatory 

program would be created using a new approach does not mean 

that it cannot achieve its intended purpose. The bills would establish a framework that could be used to create programs to regulate 

CCR disposal, allow states flexibility to develop and implement the 

CCR management and disposal programs, and specify some level of 

EPA oversight after states are implementing the program.’’ We concur with that view, that this is a new approach, and that we think 

will work well to serve the public. 

Thank you. 

[The prepared statement of Mr. Martineau follows:] 

79 


82182.007

Testimony 

Subcommittee on Environment and the Economy 

Committee on Energy and Commerce 

Thursday, April J J, 2013 

by 

Robert J. Martineau, Jr. Commissioner 

Tennessee Department of Environment and Conservation 

and 

Secretary-Treasurer, Environmental Council of the States 

Thank you for inviting me here today to talk about state regulation of coal ash and coal 

combustion by-products. I am representing the Environmental Council of the States (ECOS), 

whose members are the leaders ofthe state and territorial environmental protection agencies, and 

my own state. I am the current Secretary-Treasurer ofECOS. 

The incident that occurred in Tennessee in 2008 made coal ash management an issue of 

national concern. I am here today to talk about the position that the states have collectively 

chosen to best manage coal ash. ECOS has adopted this position as a formal resolution entitled, 

"The Regulation of Coal Combustion Residuals" (CCR), which I ask to be made part of the 

record. ECOS first passed this resolution in 2008, and reaffirmed it last month. 

In short, the resolution agrees with the multiple studies that the U.S. Environmental 

Protection Agency has conducted in fewer than three different administrations that coal ash is not 

a hazardous material. We also agree with EPA's 2005 finding that the states should continue to 

be the principal regulatory authority for coal ash. We recognize that there are significant 

2 
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82182.008

beneficial reuses for coal ash, and we support these. Regulation of coal ash as a hazardous waste 

would have a chilling effect on the beneficial reuse of coal ash in concrete, as road bed fill and 

other uses. 

While we believe the states are the appropriate regulatory authority for coal ash, we also 

recognize there is benefit for some level of national consistency; therefore, ECOS supported the 

bi-partisan efforts in the House and Senate in the last Congress to create a federal program that 

allows states to regulate coal ash management and disposal under a set of federal standards 

created directly by Congress and implemented by the states. This is a new approach as some 

have noted, including the Congressional Research Service in its recent rewrite of an earlier report 

on this topic. We expect to support a similar effort in this Congress. 

ECOS sees the approach in this bill as a new path forward for federal involvement in 

some of the environmental challenges we face. We live in an era of constrained resources at all 

levels of government: federal, state and local. Some national environmental challenges, air 

quality as an example, require significant partnerships between the states and the federal 

government. Other challenges, like coal ash, are suitable and would benefit from a new 

partnership model. 

The bi-partisan bill brought forward by Rep. McKinley is a blueprint for that partnership. 

In this bill, the federal government sets standards that protect human health and the environment, 

and provides the states the opportunity to implement, enforce, and supplement the standards that 

are the most applicable for each state. If a state chooses not to implement the CCR program, then 

EPA will. There is no fInancial assistance from the federal government to the states. However, 

the states can ask for technical and enforcement assistance from EPA should they need it. In turn, 

EPA is required to evaluate the states' success in implementing the standards in this law. If 

3 
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82182.009

necessary, EPA can assume control of any state program that is unsuccessful in implementing 

the standards. This serves as the "backstop" protection for the public. 

Because the bill does not require EPA to promulgate rules, but creates the standards 

directly in the legislation, there are fewer delays in the program start-up, and there is an 

additional savings to the federal government. 

I would like to address some of the criticisms by some of the approach taken in the CCR 

legislation from a state point-of-view. First, we acknow ledge that constructive criticism is 

helpful in shaping the solution to our approach for CCR management and disposal. The March 

19,2013 CRS report is the most detailed review, so I will address some of the concerns 

expressed in it. 

First, the March CRS report noted that last year's bill lacked a timetable for 

implementation and other deadlines. States recognize the value of a well defined schedule for 

implementation of environmental regulatory programs. States commonly include implementation 

schedules in regulations and Compliance Orders as part of operating an effective regulatory 

program. So, we would support changes to the bill that beef up the CCR Management and 

Disposal with a reasonable implementation schedule for states and the regulated community. A 

timetable allows time for the states to pass new legislation, if needed, to acquire sources of 

funding, and to promulgate "state" rules. Some states may have coal ash programs already in 

place that have addressed all, or most, of the requirements, and therefore may be able to start 

implementation ofthis act relatively quickly. This is a new approach for our times, and one that 

we believe will serve the public well. 

4 
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82182.010

The CRS report also implied that the lack of direct EPA enforcement authority would 

make it less likely for the states to implement a program. That is not the case for Tennessee, nor 

do I suspect it will be the case for any of my colleagues in other states. The bill allows states to 

request EPA's assistance when needed, which meets our needs. 

Another criticism is that standards can only be set by the promulgation of rules. We 

believe Congress can create regulatory standards for CCR management and disposal that are 

protective of human health and the environment. If states need additional regulations, the 

proposed federal statute allows each state to promulgate the necessary rules, as allowed by all 

other federal environmental programs; provided the regulations are as stringent as the federal 

statute or rule. The standards created in this statute provide a uniform national platform for CCR 

management and regulation, which states can modify to meet their individual needs. Every state 

is required to meet the standards in the act and these standards provide a strong foundation for 

CCR management and disposal. Our experience tells us that when states recognize special 

circumstances particular to their state that require additional regulation the individual state 

legislature or the Governor will direct their responsible state environmental agency to make the 

appropriate changes. 

Fourth, the CRS report seems skeptical that EPA will be able to judge the states' 

performance on the coal ash programs created in this bill. EPA has been judging state air, water, 

and waste programs for over 40 years. ECOS continues to interact with EPA on these matters on 

a regular basis. The key is not to judge a state program by whether or not it operates a regulatory 

program as EPA would, but whether the state regulatory program effectively meets the CCR 

standards set by federal statute using the regulations the state has promulgated. A state must 

certify in detail to EPA that it has equivalent statutory and regulatory authority to operate its 

5 
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82182.011

CCR Management and Disposal- including pennitting, inspections, monitoring, review of site 

data, and enforcement. Ifa state falters, EPA can warn it. Ifa state fails, then EPA can take the 

program. This is the same authority that EPA has in all other delegated state environmental 

programs. 

I will close with a quotation from the CRS report that I think is accurate and 

appropriate: 

That a RCRA program has never been authorized or established by Congress using such 

n approach does not mean that this new approach would not meet a particular objective." 

(March 2013 CRS report at 7.). The report goes on to say: 'That it fa coal ash 

regulatory program] would be created using a new approach does not mean that it cannot 

achieve its intended purpose .... The bills would establish a framework that states could 

use to create programs to regulate CCR disposal, allow states flexibility to develop and 

implement the [CCR Management and Disposal] program, and specify some level of 

EPA oversight after states are implementing the program. Such a program would be 

comparable to existing state programs to implement and enforce standards necessary to 

ensure facility compliance with the RCRA open dumping prohibition." (CRS Report at 

14.) 

6 
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82182.012

Resolution "Number 08-14 

Approved September 22. :;008 

Branson, Missoun 

Revised March 23, 2010 

Sausalito, California 

Revised March 5, 1013 

Scottsdale, Arizona 

As certifted by 

R. Steven Drown 

Executive Director 

Appendix 

THE REGULATION OF COAL COMBUSTION RESIDUALS 

WHEREAS, the 1980 Bevill Amendment to the Resource Conservation and Recovery Act (RCRA) 

requires the U.S. Environmental Protection Agency (U.S. EPA) to "conduct a detailed and comprehensive 

study and submit a report" to U.S. Congress on the "adverse effects on human health and the 

environment, if any, ofthe disposal and utilization" of fly ash, bottom ash, slag, flue gas emission control 

wastes, and other byproducts from the combustion of coal and other fossil fuels and "to consider actions 

of state and other federal agencies with a view to avoiding duplication of effort;" and 

WHEREAS, U.S. EPA conducted the comprehensive study required by the Bevill Amendment and 

reported its findings to U.S. Congress on March 8,1988 and on March 31.1999, and in both reports 

recommended that coal combustion residuals (CCR) not be regulated as hazardous waste under RCRA 

Subtitle C; and 

7 
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82182.013

WHEREAS, on August 9,1993, U.S, EPA published a regulatory detennination that regulation of the 

four large volume coal combustion wastes (fly ash, bottom ash. boiler slag. and flue gas emission control 

waste) as hazardous waste under RCRA Subtitle C is "unwarranted;" and 

WHEREAS, on May 22,2000, U.S. EPA published a final regulatory detennination that fossil fuel 

combustion wastes, including coal combustion wastes, "do not warrant regulation [as hazardous waste 1 

under Subtitle C of RCRA," and that "the regulatory infrastructure is generally in place at the state level 

to ensure adequate management of these wastes;" and 

WHEREAS, U.S. EPA is under no statutory obligation to promulgate federal regulations applicable to 

CCR disposal following the regulatory determination that hazardous waste regulation of CCR disposal is 

not warranted, and throughout the entire Bevill regulatory process, CCR disposal has remained a state 

regulatory responsibility and the states have developed and implemented regulatory programs tailored to 

the wide-ranging circumstances of CCR management throughout the country; and 

WHEREAS, in 2005, U,S, EPA and the U.S. Department of Energy published a study ofCCR disposal 

facilities constructed or expanded since 1994 and evolving state regulatory programs that found: state 

CCR regulatory requirements have become more stringent in recent years, the vast majority of new and 

expanded CCR disposal facilities have state-of-the-art environmental controls, and deviations from state 

regulatory requirements were being granted only on the basis of sound technical criteria; and 

WHEREAS, in June 2010, U.S. EPA issued proposed rules for the management of CCR under both 

RCRA Subtitle C (hazardous waste) and RCRA Subtitle D (solid waste) laws, and these proposed rules 

have yet to be finalized; and 

8 
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82182.014

WHEREAS, the Association of State and Territorial Solid Waste Management Officials (ASTSWMO) 

conducted surveys of states in 2009 and 2010, which indicated that of the 42 states that responded which 

have disposal ofCCR, 36 of those states have permitting programs for disposal activity, with 94% of 

those requiring groundwater monitoring, In addition, all 42 states have the authority to require 

remediation, should it be necessary, and the majority ofthese state regulations are under general solid 

waste and general industrial waste regulations; and 

WHEREAS, the states have demonstrated a continued commitment to ensuring proper management of 

CCR and several states have announced proposals for revising and upgrading their state CCR regulatory 

programs; and 

WHEREAS, some states and utilities have cooperatively demonstrated numerous beneficial uses of CCR, 

such as additives in cement, soil amendments, geotechnical fill, and use in drywall. 

NOW, THEREFORE BE IT RESOLVED THAT THE ENVIRONMENTAL COUNCIL OF THE 

STATES: 

Agrees with U.S. EPA's repeated assessments in 1988, 1993, 1999,2000, and 2005 that CCR disposal 

does not warrant regulation as hazardous wastes under RCRA Subtitle C; 

Agrees with U.S. EPA's finding in the 2005 study previously cited that "the regulatory infrastructure is 

generally in place at the state level to ensure adequate management of these wastes" and believes that 

states should continue to be the principal regulatory authority for regulating CCR as they are best suited 

to develop and implement CCR regulatory programs tailored to specific climate and geological conditions 

designed to protect human health and the environment; 

Supports safe, beneficial reuse of CCR, including for geotechnical and civil engineering purposes; 

9 
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82182.015

Believes that the adoption and implementation of a federal CCR regulatory program would create an 

additional level of oversight that is not warranted, duplicate existing state regulatory programs, and 

require additional resources to revise or amend existing state programs to conform to new federal 

regulatory programs and to seek U.S. EPA program approval; 

Believes that if U.S. EPA promulgates a federal regulatory program for state CCR waste management 

programs, the regulations must be developed under RCRA Subtitle 0 rather than RCRA Subtitle C; 

Believes that designating CCR a ha711rdous waste under RCRA Subtitle C could create stigma and 

liability concerns that could impact the beneficial use of CCR; and 

Therefore calls upon U.S. EPA to conclude that additional federal CCR regulations would be duplicative 

of most state programs, are unnecessary, and should not be adopted, but if adopted must be developed 

under RCRA Subtitle 0 rather than RCRA Subtitle C, and in addition, urges U.S. EPA to make a timely 

decision, and calls upon U.S. EPA to begin a collaborative dialogue with the states to develop and 

promote a national framework for beneficial use of CCR including use principles and guidelines, and to 

accelerate the development of markets for this material. 

10 
88 

Mr. SHIMKUS. Gentleman yields back his time. I want to thank 

you for your testimony. 

Now I would like to recognize Mr. Stephen A. Cobb, Professional 

Engineer, Chief, Governmental Hazardous Waste Branch Land Division of the Alabama Department of Environmental Management. 

Sir, welcome, and you have 5 minutes. 

STATEMENT OF STEPHEN A. COBB 

Mr. COBB. Thank you, Mr. Chairman. Chairman Shimkus, Ranking Member Tonko, honorable subcommittee members, my name is 

Stephen Cobb and I represent the Alabama Department of Environmental Management, or ADEM, which is the environmental 

regulatory agency in the State of Alabama. Thank you for the opportunity to address the subcommittee this morning. My remarks 

are based on ADEM’s more than 30 years of implementing programs for the management of solid and hazardous waste in the 

state, including my personal experience in this area over the last 

25 years. I have also submitted a more detailed statement for the 

committee’s consideration. 

Alabama is home to one of the largest hazardous waste disposal 

facilities in the Nation, and we have extensive experience managing higher risk waste. We clearly understand that a massive influx of lower risk solid waste such as coal combustion residuals into 

the hazardous waste classification would pose a threat to the level 

of attention needed for the safe management of all materials classified as hazardous waste, and also understand the challenges and 

resources required to permit and inspect such facilities. Alabama is 

also home to 29 medium to large municipal solid waste, or MSW, 

landfills, so we also have a very good understanding of the protections that are provided by the MSW landfills under 40 C.F.R. part 

258, to ensure safe waste management, to prevent future releases, 

and to require corrective action to address past releases where 

needed. 

As a result of having both types of facilities, we have a unique 

perspective on the issues which should be taken into account in 

considering how best to regulate materials such as CCRs. EPA has 

attempted to resolve the regulatory status of CCRs since the early 

’80s, but its difficulty in doing so may be attributed to two facts. 

First, CCRs generally do not meet the established criteria for classification of hazardous waste under Subtitle C, and second, there 

is no provision under Subtitle D for a national permitting program 

for these materials as nonhazardous solid wastes. The enactment 

of new Section 4011 as described in the discussion draft will solve 

this problem by requiring the CCR structures be designed and permitted pursuant to national standards under Subtitle D, the same 

standards used for MSW facilities. 

We must be aware of the tiered method by which waste has been 

regulated and controlled for the last 5 decades, which imposes restrictions commensurate with the risk of permanent harm to 

human health and the environment posed by mismanagement. 

Looking at this system from the highest risk materials down, we 

see nuclear rated electrical waste at the top, followed by hazardous 

waste, municipal solid waste, industrial waste, construction demolition, and other wastes such as yard trimmings at the bottom. Of 

89 

these categories, only municipal, hazardous, and nuclear radiological waste are currently subject to federally mandating permitting and management requirements, with the remainder addressed 

effectively through the jurisdiction and authority of the individual 

states. 

To include CCRs in the hazardous waste category would pose a 

risk of neglecting the wastes that are currently classified as hazardous, due to the massive expansion of waste quantities caused by 

including CCRs in the category. For example, about 120,000 tons 

of hazardous waste are land disposed in Alabama each year, compared to approximately 4 million tons of CCRs that are generated 

within our state annually. 

Congress can look to the fact that Alabama and other states have 

routinely adopted and implemented those programs that are required and authorized by federal law as clear evidence that we will 

appropriately implement the national CCR program. In fact, in anticipation of first national standards for these materials, our legislature in 2011 authorized our agency to develop and adopt rules as 

necessary to implement a state regulatory program consistent with 

the federal requirements. As a safeguard, there is a role for EPA 

to evaluate our implementation of the permitting program, and to 

demand changes if the state program is not meeting the national 

requirements, as well as for EPA to take over implementation of 

the permitting program if the state does not do so. 

In conclusion, Mr. Chairman, ADEM stands ready to implement 

a comprehensive permitting program for CCRs in Alabama, based 

on national standards, so as to ensure that these materials are 

properly managed now and into the future, but we must do so in 

a manner that provides the needed protections, can be implemented quickly and efficiently by the states, does not disrupt the 

established tiered system of waste management in this country, 

and does not result in needless duplication and proliferation of regulations and regulatory programs. 

Thank you again for the opportunity to address the committee 

this morning. I will be glad to answer any questions you might 

have. 

[The prepared statement of Mr. Cobb follows:] 

90 


82182.016

LANCE R. LEFLEUR 

DIRECTOR 

B/mIInghamBritnl:h 

~10Vl.llcanRoad 

!3irm:ngham,';'l352Q9-4702 

(205)942-6168 

(205) 9411603 {FAX) 

AIEM Alabama Oepartment of Enylronmental Management 

adem.alabama.goy 

1400 Coliseum Blvd. 36110-2400 • Post Office Box 301463 

Montgomery, Alabama 36130·1463 

(334) 271-7700 • FAX (334) 271-7950 

u.s. House of Representatives 

Committee on Energy and Commerce 

Subcommittee on Environment and the Economy 

Hearing 

"Discussion Draft of H.R. _, The Coal Ash Recycling 

and Oversight Act of 2013" 

April 11, 2013 

Testimony of 

Stephen A. Cobb, P.E. 

Chief, Governmental Hazardous Waste Branch 

Alabama Department of Environmental Management 

"""""' ... "'" 271S5anc!hnRoa<.l,S.W 

Decatur. AL 35603·1333 

..... "'''''''' 2204 P€nmetel Roat;l 

Motllit'. AL 36615-1131 

ROBERT J. BENTLEY 

GOVERNOR 

~I 

4171 Comrnaf\ders Dnve 

Mobfle.AL3G615-1421 

(251) 432·6533 

(251) 432·6598 (FAX) 
91 


82182.017

Summary 

Stephen A. Cobb 

Opening Statement - Page 2 

US House E&E Subcommittee 

April 11, 2013 

EPA has attempted to resolve the regulatory status of CCRs since the early 1980s, but has had 

considerable difficulty due to two facts - first, CCRs generally do not meet the established 

criteria for classification as hazardous wastes under Subtitle C of RCRA; and second, there is 

no provision for a national permitting program for these materials as a non-hazardous solid 

waste under Subtitle D of RCRA. Establishing a national permitting program for CCRs should 

build from MSW requirements which will provide the needed protections. 

To include CCRs in the "Hazardous Waste" category would pose a risk of neglecting the wastes 

that are currently classified as hazardous due to the massive expansion of waste quantities 

caused by including CCRs in this category, Because states have been successfully 

implementing MSW permit programs for many years, a CCR permitting program could be 

adopted sooner than developing a new program from scratch, and will help to prevent the 

needless duplication of regulatory programs and regulations. 

Congress can look to the fact that Alabama and other States have routinely adopted and 

implemented those programs required and authorized by federal law as clear evidence that 

States will appropriately implement the national CCR program. As a safeguard, there is a role 

for EPA to evaluate our implementation of the permitting program and demand changes if the 

state program is not meeting the national program requirements, as well as for EPA to take over 

implementation of the permitting program if the State does not do so, 

Enactment of minimum national standards and a permitting program for CCRs must be done in 

a manner that: 1) provides the needed protections, 2) can be implemented quickly and 

efficiently by the States, 3) does not disrupt the established tiered system of waste management 

in this country, and 4) does not result in needless duplication and proliferation of regulations and 

regulatory programs, The Discussion Draft appears to achieve this balance. 
92 


82182.018

Full Statement 

Stephen A. Cobb 

Opening Statement - Page 3 

US House E&E Subcommittee 

April 11, 2013 

Chairman Shimkus, Ranking Member Tonko, Honorable Subcommittee Members, ladies and 

gentlemen, my name is Stephen Cobb and I represent the Alabama Department of 

Environmental Management, or ADEM, which is the environmental regulatory agency for the 

State of Alabama. Thank you for the opportunity to address the Subcommittee this morning 

regarding the "Discussion Draft of H.R. _, The Coal Ash Recycling and Oversight Act of 2013" 

that is the subject of this hearing, and the regulation of the management and disposal of coal 

combustion residuals, or CCRs, also often referred to as coal ash. My remarks are intended to 

share ADEM's perspective based on more than thirty years of experience implementing 

programs for the management of solid and hazardous wastes in the State, including my 

personal experience in this area over the last twenty-five years. 

Alabama has one of the largest Hazardous Waste disposal facilities in the nation, and ADEM 

has extensive experience managing higher risk wastes. We clearly understand that a massive 

influx of lower risk solid waste, such as coal combustion materials, into the Hazardous Waste 

classification would pose a threat to the level of attention needed for the safe management of all 

materials classified as hazardous waste. We also understand the challenges and regulatory 

resources required to permit and inspect such facilities. Alabama is also home to twenty-nine 

medium to large municipal solid waste, or MSW, landfills, and therefore also has considerable 

experience in implementing the MSW landfill (MSW) permitting program. As a result, ADEM 

has a very good understanding of the protections provided by the MSW standards under 40 

CFR Part 258 to: 1) ensure safe waste management, 2) prevent future releases, and 3) require 

corrective action to address past releases where needed, As a result of having both types of 
93 


82182.019

Stephen A. Cobb 

Opening Statement - Page 4 

US House E&E Subcommittee 

April 11. 2013 

facilities, Alabama has a unique perspective on the contrasts and considerations which should 

be taken into account in considering how best to regulate materials such as CCRs. 

The U.S. Environmental Protection Agency (EPA), has attempted to resolve the regulatory 

status of CCRs since the early 1980s, but its considerable difficulty in doing so may be 

attributed to two facts - first, CCRs generally do not meet the established criteria for 

classification as hazardous wastes under Subtitle C of the Resource Conservation and 

Recovery Act (RCRA); and second, there is no provision for a national pemnitting program for 

these materials as a non-hazardous solid waste under Subtitle D of RCRA in the absence of a 

national directive or minimum federal standards. The enactment of new Section 4011, as 

described in the Discussion Draft, will solve this problem by requiring that CCR structures be 

designed and permitted pursuant to national standards under Subtitle D - the standards 

required for MSW facilities. In Alabama, for many years these materials and structures were 

statutorily exempt from the State solid waste requirements. However, in anticipation of 

enactment of first-ever minimum national standards for CCRs, our Legislature in 2011 removed 

this exemption and authorized ADEM to "develop and adopt rules as necessary to implement a 

state regulatory program consistent with the federal requirements.'" ADEM is prepared to 

revise our program as necessary to meet federal standards, whether set by EPA regulations, or 

by Congress, to enable and require a non-hazardous waste permit program for CCRs. 

In establishing a national permitting program for CCRs, we must recognize that CCRs are solid 

wastes - they routinely do not meet the long-established criteria for designating a material as a 

hazardous waste, a fact which has been supported by multiple EPA Regulatory Determinations 

through the years. To force CCRs into the Hazardous Waste classification would serve to dilute 

the protections needed for "real" Hazardous Waste. In addition, there is no need to "re-create 

1 Act No. 2011-258, as codified at Section 22-27-3(h), Code of Alabama (1975), as amended. 
94 


82182.020

Stephen A. Cobb 

Opening Statement - Page 5 

US House E&E Subcommittee 

April 11, 2013 

the wheel" for non-hazardous solid wastes - we can build from long-established MSW 

requirements, which will provide the needed protections, In fact, the preamble presented in 

EPA's Proposed Rule of June 21,2010 states: 

"In developing the proposed RCRA subtitle 0 option for CCRs, EPA considered a 

number of existing requirements as relevant models for minimum national standards 

for the safe disposal of CCRs. The primary source was the existing requirements 

under 40 CFR part 258, applicable to municipal solid waste landfills, which provide a 

comprehensive framework for all aspects of disposal in land-based units, such as 

CCR landfills, Based on the Agency's substantial experience with these 

requirements, EPA believes that the part 258 criteria represent a reasonable balance 

between ensuring the protection of human health and the environment from the risks 

of these wastes and the practical realities of facilities' ability to implement the criteria. 

The engineered structures regulated under part 258 are very similar to those found 

at CCR disposal facilities, and the regulations applicable to such units would be 

expected to address the risks presented by the constituents in CCR wastes, 

Moreover, CCR wastes do not contain the constituents that are likely to require 

modification of the existing part 258 requirements, such as organics; for example, no 

adjustments would be needed to ensure that groundwater monitoring would be 

protective, as the CCR constituents are all readily distinguishable by standard 

analytical chemistry. As discussed throughout this preamble, each of the provisions 

adopted for today's subtitle 0 co-proposal relies, in large measure, on the record 

EPA developed to support the 40 CFR part 258 municipal solid waste landfill criteria, 
95 


82182.021

Stephen A. Cobb 

Opening Statement - Page 6 

US House E&E Subcommittee 

April 11, 2013 

along with the other record evidence specific to CCRs, discussed throughout the coproposed subtitle C alternative, ,Q 

The MSW permit program is currently limited to MSW, CCRs are similar to MSW, but arguably 

less dangerous (in that CCRs typically pass toxicity characteristic leaching potential, or TCLP 

tests, do not contain putrescible organics, do not contain household hazardous waste, contain 

fewer overall constituents of concern, etc.). An option which should be avoided is attempting to 

create a new regulatory regime from whole cloth (as opposed to building from the existing 

RCRA Subtitle 0 building blocks), which would result in unnecessary regulatory proliferation, 

add unneeded bureaucracy to the regulatory process, and add substantially to the overall costs 

to the taxpayers of properly regulating solid wastes. Proposed Section 4011 as described in the 

Discussion Draft will appropriately build the CCR permitting program from the MSW program 

requirements. Proposed Section 4011 accomplishes this by using the existing MSW regulations 

where applicable, and adding to the MSW framework needed requirements for structural 

integrity and provisions to address new and existing surface impoundments, as well as 

providing for appropriate inspection and enforcement authorities, public participation in the 

regulatory process, and EPA review of State permitting programs. 

We must be cognizant of the established tiered method by which we have regulated and 

controlled wastes in this country for the last 5 decades. Basically this structure imposes 

restrictions on the management of wastes commensurate with the level of risk of permanent 

harm to human health and the environment posed by mismanagement, and is generally 

classified by category of wastes. Looking at this system from the highest risk materials down, 

we see Nuclear/Radiological wastes at the top, followed by Hazardous Wastes, Municipal Solid 

, Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal 

Combustion Residuals From Electric Utilities, 75 Fed. Reg, (proposed June 21, 2010) (Section D.IXAL"Regulatory 

Approach", pg. 35139). 
96 


82182.022

Stephen A Cobb 

Opening Statement - Page 7 

US House E&E Subcommittee 

April 11. 2013 

Wastes, Industrial Wastes, ConstructionlDemolition Wastes, and other wastes (such as yard 

trimmings) at the bottom. Of these categories, only Municipal Solid Waste, Hazardous Waste, 

and Nuclear/Radiological wastes are subject to federally mandated management and permitting 

requirements, with the remainder effectively addressed through the jurisdiction and authority of 

the individual States. EPA has been attempting to establish a regulatory program for CCRs for 

several years, but has not yet achieved its goal. Proposed Section 4011 as described in the 

Discussion Draft would accomplish this. 

To include CCRs in the "Hazardous Waste" category would pose a risk of neglecting the wastes 

that are currently classified as hazardous due to the massive expansion of waste quantities 

caused by including CCRs in this category. For example, about one hundred twenty thousand 

(120,000) tons' of Hazardous Wastes are land disposed in Alabama each year, compared to 

approximately four (4) million tons' of CCRs generated annually in our state. Nationally, about 

two (2) million tons' of Hazardous Waste are disposed in landfills and surface impoundments 

annually, as compared to a national generation rate for CCRs of about one hundred forty-nine 

(149) million tons· per year. Proposed Section 4011 as described in the Discussion Draft will 

ensure that CCRs are disposed in a protective manner without diverting the attention and 

protections which are necessary for more harmful materials. 

, National Biennial RCRA Hazardous Waste Report: 2011 Edition, UsEPA; and National Biennial RCRA Hazardous 

Waste Report: 2009 Edition, US EPA; and National Biennial RCRA Hazardous Waste Report: 2007 Edition, USEPA. 

4 Regulatory Impact Analysis For EPA's Proposed RCRA Regulation Of Coal Combustion Residues Generated by the 

Electric Utility Industry - Appendix C. U5EPA ORCR, April 30, 2010. 

5 National Biennial RCRA Hazardous Waste Report: 2011 Edition, UsEPA; and National Biennial RCRA Hazardous 

Waste Report: 2009 Edition, UsEPA; and National Biennial RCRA Hazardous Waste Report: 2007 Edition, UsEPA . 

, Regulatory Impact Analysis For EPA's Proposed RCRA Regulation Of Coal Combustion Residues Generated by the. 

Electric Utility Industry - Appendix C. USEPA ORCR, April 30, 2010. 
97 


82182.023

Stephen A. Cobb 

Opening Statement - Page 8 

US House E&E Subcommittee 

April 11, 2013 

Section 4011 (c) of the Discussion Draft Legislation would establish a national permitting 

program similar to the one for MSWs that draws upon existing state MSW permit program 

requirements, Because states have been successfully implementing MSW permit programs for 

many years, a CCR permitting program could be adopted sooner than developing a new 

program from scratch, and will help to prevent the needless duplication of regulatory programs 

and regulations. Sections 4011 (b) and 4011 (c) of the Discussion Draft mandate an aggressive 

implementation schedule for CCR permitting programs, including implementation of 

groundwater monitoring and corrective action for existing CCR surface impoundments, 

Congress can look to the fact that Alabama and other States have routinely adopted and 

implemented those programs required and authorized by federal law as clear evidence that we 

will again rise to the occasion and implement the national CCR program, It is important to 

acknowledge that the implementation of this new program, and particularly the initial issuance of 

permits under it, will be a significant resource challenge for Alabama, and presumably for other 

States as well. However, it is a challenge that we recognize must be met, and we will meet that 

challenge. 

As a safeguard, proposed Sections 4011 (d) and 4011 (e) provide a significant role for EPA to 

evaluate a State's implementation of the permitting program and demand changes if the State is 

not meeting the national program requirements, as well as the authority for EPA to take over 

implementation of the permitting program if the State does not do so, 

States such as Alabama have repeatedly demonstrated our ability to implement waste 

programs, for both hazardous waste and for MSW - and it does not make sense to have yet 

another laborious pre-implementation demonstration of State capabilities, especially given the 

already strained State and federal budgets we operate under. However, it does make sense for 

EPA to have a role in reviewing a program as it is implemented to verify that it is meeting the 
98 


82182.024

Stephen A. Cobb 

Opening Statement - Page 9 

US House E&E Subcommittee 

April 11, 2013 

required objectives and standards of the national program requirements, and to be able to step 

in and implement the program should the State not do so. Ensuring that CCRs are properly and 

safely managed should be about actually implementing the programs in a timely and effective 

manner. The similarities between the permit program in the Discussion Draft and the MSW 

permit program make it feasible for States to implement these programs without spending years 

providing demonstrations of capability before we get about the business of doing the job that 

needs to be done. This type of State-EPA partnership ensures that programs are implemented 

quickly and effectively, while at the same time providing the checks and balances necessary to 

assure Congress and the American public that programs are indeed protective of human health 

and the environment. As Senator Shelby from Alabama reminded me in a hearing on another 

mailer years ago, it's not what we say that matters ... it's our actions that count. We can spend 

years studying and talking about how best to implement and document an effective State 

regulatory program, or we can implement that program and hold it accountable for achieving the 

desired results. 

MSW-based controls, in addition to ensuring the safeguards needed to prevent harmful impacts 

from CCRs, also do not bring other unintended and undesirable consequences - such as the 

stigma and long-term uncertainty regarding the future disposition of products made from 

recycled materials that discourage safe and appropriate recycling of a significant portion of 

these materials. Given the extremely high volume of the CCR waste stream, it is critically 

important to consider that the safe and appropriate reuse of these materials not only reduces 

the volume of waste that must be permanently disposed, but also substantially reduces the 

demand for virgin raw materials, and thus reduces the costs and environmental impacts 

associated with the extraction and processing of the replaced natural resources. 
99 


82182.025

Stephen A. Cobb 

Opening Statement - Page 10 

US House E&E Subcommittee 

April 11, 2013 

Thus, it is critical that in establishing needed minimum national standards for CCRs, that we 

enact those standards necessary to provide adequate protections. But in doing so, 1) we must 

not undermine the regulation of materials with greater potential for harm, and 2) we must not 

unnecessarily discourage reuse and recycling that is in the overall national interest. Based on 

our experience and evaluation in Alabama, we believe a permitting program administered by the 

States and based generally upon existing MSW standards, as proposed in the Discussion Draft, 

achieves this balance. 

Further, building a national CCRs permitting program utilizing the pre-existing MSW framework 

will enable States to implement effective and protective programs with less fiscal impact to 

already strained State budgets, and without the need for a major influx of new federal grants 

and funding which would be required under a Subtitle C approach. 

In conclusion, Mr. Chairman, ADEM stands ready to implement a comprehensive permitting 

program for CCRs in Alabama based on national standards, so as to ensure that these 

materials are properly managed now and into the future. But we must do so in a manner that: 

1) provides the needed protections, 2) can be implemented quickly and efficiently by the States, 

3) does not disrupt the established tiered system of waste management in this country, and 4) 

does not result in needless duplication and proliferation of regulations and regulatory programs. 

Thank you, again, for the opportunity to address the Subcommittee this morning. I will be glad 

to answer any questions you may have. 
100 

Mr. SHIMKUS. Thank you, Mr. Cobb, and I would like to recognize Ms. Susan Parker Bodine, who is a partner with the law firm 

of Barnes & Thornburg. You are recognized for 5 minutes. Your full 

statement is in the record. 

STATEMENT OF SUSAN PARKER BODINE 

Ms. BODINE. Thank you, Chairman Shimkus—— 

Mr. SHIMKUS. I think there should be a button underneath— 

there you go. 

Ms. BODINE. I think I would remember that. 

Chairman Shimkus, Ranking Member Tonko, members of the 

subcommittee, thank you for inviting me here today to testify on 

the Coal Ash Recycling and Oversight Act of 2013. As the chairman 

said, I am a partner in the firm Barnes & Thornburg. I am here 

to testify based on my understanding of RCRA, Research Conservation Recovery Act, and its implementation, and that is from my 

past experience as being the Assistant Administrator for the Office 

of Solid Waste and Emergency Response from January, 2006 to 

January, 2009. So I can understand the situation that the agency 

is in, but I also understand the prerogatives of Congress and certainly the role of Congress in developing regulatory programs, because before I was at EPA, I was working in this building for 11 

years over on the Transportation and Infrastructure Committee 

staff. So I can bring both perspectives to bear here. 

But first, I want to talk about EPA and development of regulations. As I think some have already noted, EPA has been looking 

at coal ash management issues, and any risks that might be associated with that for, you know, let’s just say 30 years, a long time. 

And in that time period, EPA has not developed a record that supports federal regulation of coal ash. I will go into—that is not the 

agency’s fault, but they simply have not developed a risk assessment and the record to support it. They have acknowledged that 

back in 1998. This risk assessment was done before the report to 

Congress in 1999 and the 2000 regulatory determination. EPA said 

that—this is a quote—‘‘EPA found that modeling uncertainty and 

error may have led to substantial overestimation of risks.’’ That 

was in the ’98 risk assessment. Again, if they didn’t stop work on 

this issue, and continued to work on the risk assessment, continued 

to make changes to it, sent it out for peer review in 2008. Again, 

didn’t—the agency still did not fix the problems that had been 

identified, and the peer reviewers pointed out many of the same 

problems and EPA acknowledged those issues. And there is a 2009 

response to the peer review that is in the docket for the rulemaking 

that is pending, and that 2009 response says—and this is a quote— 

’’EPA acknowledges that the leaching profile described by Dr. 

Basta may be more realistic, however, the agency does not have the 

data to use time variant leaching concentrations.’’ And what that 

means is that EPA assumed that whatever—that there is no attenuation of any hazardous constituents if anything leaches out of 

a landfill. One hundred percent of the constituents they say would 

leak out at 100 percent level. Same issue, again, a quote from the 

peer review, ‘‘EPA acknowledges there may be insoluble or otherwise unleachable contaminant mass that remains in a waste management unit, however, EPA has no data available, again, to supVerDate Nov 24 2008 15:21 Sep 17, 2013 Jkt 037690 PO 00000 Frm 00106 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 113\113-29 CHRIS
101 

port a different approach.’’ They are assuming 100 percent moves 

out of a landfill or a surface impoundment, because they have no 

data to assume otherwise. 

The agency is now—they are saying that they still want to fix 

the risk assessment. We do have a proposal out there, but the 

agency is saying they do still want to fix it. They are now pointing 

to data that was collected by the Office of Water when they were 

looking at revising Clean Water Act regulations, and in filings before the District Court for the District of Columbia, the agency has 

said that this new data may change the assessment of risk by an 

order of magnitude. You heard Mr. Stanislaus say just a few minutes ago that they are not in a position to make a judgment on 

risk, and yes, that is right. The risk assessment hasn’t changed 

and has the assumptions that are very conservative. 

The bill takes an approach that takes the EPA out of its box. 

They are in a box. They don’t have a record to support regulation. 

By prescribing the standards in the legislation directly, they don’t 

have to justify a rule, they don’t have to justify standards based 

on risk. I heard Mr. Stanislaus say to you that they would like to 

provide technical assistance for criteria tailored to specific risks. 

Again, they don’t have a risk assessment that can do that kind of 

tailoring, but the bill allows them to then go ahead and implement 

the program without creating those justifications. As I think you 

pointed out, Mr. Chairman, the provisions of the legislation are 

based on provisions that the agency has already said are protective. 

You were asking Mr. Stanislaus to quote from his Federal Register 

preamble, and it does say that the part 258 criteria present a reasonable balance between ensuring protection of the human health 

and the environment, and the practical realities of facilities’ ability 

to implement the criteria. So they have endorsed that and you have 

also picked up the structural integrity issues and the fugitive dust 

issues. 

So what my message to you is that—and actually, my message 

to the agency is they should embrace this because it gets them out 

of a regulatory box and allows you to move forward, which we have 

heard from other members saying let’s move forward and address 

these issues, and let’s do it. 

Thank you. 

[The prepared statement of Ms. Parker Bodine follows:] 

102 


82182.026

Testimony of Susan Parker Bodine 

Partner 

Barnes & Thornburg 

Before the Subcommittee on Environment and the Economy 

Of the House Committee on Energy and Commerce 

Hearing on "The Coal Ash Recycling and Oversight Act of 2013" 

April 11, 2013 

Chairman Shimkus, Ranking Member Tonko, members ofthe subcommittee, thank you for the 

invitation to appear today to testify on "The Coal Ash Recycling and Oversight Act of2013." 

My goal today is to provide an analysis ofthis draft legislation, based on my understanding of 

the Resource Conservation and Recovery Act (RCRA) and its implementation. I am currently a 

partner in the law firm of Barnes & Thornburg. From January 2006 to January 2009, I held the 

position of Assistant Administrator, EPA Office of Solid Waste and Emergency Response. 

First I will provide a brief history of the status of coal ash under RCRA. Second, I will briefly 

discuss EPA's 2010 proposal to regulate coal ash under RCRA. Third, with that background, I 

will discuss the draft legislation. 

EPA Review of Coal Ash Management and Risks 

Under subtitle C ofRCRA, EPA has the authority to regulate the management and disposal of 

hazardous wastes. Coal ash, when discarded, is a solid waste subject to Subtitle DofRCRA. 

This means that the disposal of coal ash is regulated by states and not the federal government. 

This division of authority is based on a determination by Congress that the protection of human 

health and the environment does not require federal control over wastes other than hazardous 

wastes, except to a limited extent to preclude open dumping. 
103 


82182.027

Coal ash is not a hazardous waste. First, coal ash rarely if ever exhibits any of the hazardous 

characteristics used to identify hazardous wastes under EPA's subtitle C regulations. 1 Second, 

coal ash has not been individually listed by EPA as a hazardous waste." Third, in 1980, 

Congress precluded EPA from listing coal ash (and other large volume, low toxicity wastes) as 

hazardous waste until it had conducted a study and made a report to Congress regarding the 

characteristics and management of these materials, to determine whether regulation under 

subtitle C was warranted. See RCRA section 3001(b)(3), 42 U.S.C. § 6921(b)(3) (Bevill 

Amendment). In regulatory determinations issued in 19933 and in 2000,4 pursuant to the Bevill 

Amendment to RCRA, EPA has found that subtitle C regulation of coal ash is not warranted. In 

the 2000 regulatory determination EPA did say that federal regulation under subtitle D would be 

appropriate. 

The 2000 regulatory determination that federal regulation under Subtitle D was warranted was 

based on a record developed by the Agency before 1995 and relied on industry practices between 

1985 and 1995 and EPA's review ofthe eleven damage cases that EPA determined to be related 

I See 40 CF.R. * 261.11 (a). The hazardous characteristics used to identify waste as hazardous are toxicity. 

corrosivity~ ignitability, and reactivity. 

2 See 40 CF.R. * 261.lI(b). 261.31-261.33. In general. EPA has authority to list waste has hazardous if EPA 

detennines that the waste is capable of posing a substantial present or potential hazard to human health or the 

environment based on 10 listing criteria (lmnd at 40 CF.R. § 261.11(b){3). 

3 In 1988, EPA completed a study and report to Congress that examined four "Iarge-volume" types of coal 

combustion waste (fly ash, bottom ash. boiler slag. and flue gas emission control waste). Based on that study and 

report, in 1993 EPA published a regulatory determination that subtitle C regulation of those wastes is not warranted. 

58 Fed. Reg. 42.466 (Aug. 9, 1993). 

4 In 1999. EPA completed a study and report to Congress that examined additional "Iow- volume" types of coal 

combustion waste, including their co-management \vith the four large volume types of coal combustion waste. 

Based on that study and report, EPA published another regulatory determination finding that these wastes also did 

not warrant subtitle C regulation. 65 Fed. Reg. 32.214 (May 22. 2000). 

2 
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to coal ash management. While EPA had conducted an assessment of coal ash management 

risks, EPA did not rely that risk assessment in its regulatory determination. Too many issues had 

been raised about the validity of that risk assessment that EPA could not address because EPA 

was under a court ordered deadline to make the regulatory determination. 5 

Following the 2000 regulatory determination, EPA continued to evaluate coal ash by continuing 

work on the risk assessment, reviewing new alleged damage cases submitted by environmental 

groups,6 developing a report in conjunction with the Department of Energy on more recent 

management practices, and working with the Department ofthe Interior to develop regulations 

under the Surface Mining Control and Reclamation Act to address coal ash used to fill surface or 

underground coal mines. EPA also reviewed a 2004 petition for rulemaking submitted by the 

Clean Air Task Force and the Hoosier Environmental Council and a Voluntary Action Plan 

submitted by the electric utility industry. In 2007, EPA made all of this information available 

for public review and comment in a Notice of Data Availability (NODA). 72 Fed. Reg. 49714 

(Aug. 29, 2007). 

In 2008, EPA sent its draft risk assessment to external peer reviewers. The reviewers raised 

significant concerns about the risk assessment. These concerns included the following: (I) the 

j 72 fed. Reg. 49714. 49717 (Aug. 29, 2007). See also. Technical Background Document for Supplemental Report 

To Congress on Remaining Fossil Fuel Combustion Wastes. Ground-Water Pathway, Human Health Risk 

Assessment, Revised Draft Final, June 1998. at 8-2 ("EPA found that modeling uncertainty and error may have led 

(0 substantial overestimation of risks."); and 8-4 ("As with the other waste types, EPA found that uncertainty and 

modeling error may have overestimated the risks associated with FBC wastes."). 

6 This review raised the total of proven damage cases from lIto 24, of which 6 were related to disposal in sand and 

gravel pits. 72 Fed. Reg. at 49718-19. By the time it issued its June 2010 proposal to federally regulate coal ash 

under either subtitle C or subtitle D. EPA had identified 3 additional proven damage cases for a total of27, 8 of 

which were damages related to surface water discharges. which are regulated under the Clean Water Act. 75 Fed. 

Reg. 35128. 35147 (June 21. 2010). 

3 
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risk assessment assumed that 100% of the mass of any contaminants would leach out and none 

would remain insoluble and non-leachable, (2) the risk assessment assumed that the 

concentrations of those contam inants would remain constant throughout a 10,000 year modeling 

period and would not attenuate, (3) the modeling used in the risk assessment did not take into 

account that some groundwater plumes would reach surface water and would never reach 

receptors, and (4) EPA had no data on the existence of potential receptors and instead assumed 

the existence of drinking water wells based on data on wells in the proximity of solid waste 

landfills. In its September l, 2009, draft response to Peer Review Comments on the CCW Risk 

Assessment, EPA acknowledges the issues but states that it can not address them due to 

limitations on available data and in the models used. 

EPA's 2010 proposal to regulate coal ash under RCRA 

In December 2008, a dike used to contain fly ash in the dewatering area ofthe TVA's Kingston 

Fossil Plant in Harriman, Tennessee released approximately 5.4 million cubic yards of fly ash 

sludge into the Emory River. Although this release was a Clean Water Act violation, EPA 

decided to initiate rulemaking to regulate coal ash under RCRA. EPA released its proposed 

regulation in June 2010. 75 Fed. Reg. 35128 (June 21,2010). EPA proposed both a subtitle C 

and a subtitle D regulatory option. However, both options proposed essentially the same 

regulatory requirements, including removal and retrofitting or removal and closure of all surface 

impoundments managing coal ash.7 

7 An additional option, subtitle D "prime" would not require closure or retrofitting of existing unit. 

4 
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EPA's 2010 proposed rule departs from prior RCRA rulemakings in three significant ways. 

First, under the subtitle C option, EPA is proposing to overturn a previous Bevill determination. 

EPA has never before taken such an action and some commentors have questioned whether EPA 

has the legal authority to do so. Second, EPA is proposing to apply the newly proposed 

management standards retroactively. to regulate disposal that has already occurred. Congress 

has never authorized and EPA has never attempted to apply hazardous or solid waste regulations 

retroactively. For example. in the 1984 Hazardous and Solid Waste Amendments, Congress 

imposed minimum technology requirements for hazardous waste management units, requiring 

double liners and leachate collection. However. units that closed before the effective date of the 

new requirements were not affected. Similarly, criteria for municipal landfills also requiring 

liners and leachate collection went into effect in 1993, but landfills that closed before that date 

did not have to meet the new requirements. EPA applies the same approach to newly listed 

hazardous wastes. If a waste is newly listed, hazardous waste management standards do not 

apply to the newly listed waste unless it is actively managed. Thus. EPA has never before 

sought to compel persons to dig up and remove wastes that have already been placed into 

management units. 

The third significant departure from past practices is the quality of the risk assessment upon 

which EPA is relying. In the proposed rule, EPA admits that there are questions surrounding the 

risk assessment. 75 Fed. Reg. at 35133. EPA also states that it made revisions to its risk 

assessment based on the 2008 peer review. ld. at 35144. However, EPA did not make changes 

to the risk assessment to address the peer review comments. Instead, EPA changed the risk 

assessment to acknowledge the issues raised by peer reviewers and the resulting uncertainty. 

5 
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Nonetheless, this risk assessment is the basis for EPA's proposal to regulate coal ash as a 

hazardous waste under subtitle C, or to set prescriptive standards for coal ash under subtitle D. 

The defects in the risk assessment identified by peer reviewers may undermine the legal 

defensibility of EPA's proposed rulemaking. EPA is very cognizant of this, as is apparent from a 

brief filed by EPA in a case relating to its proposed ru Ie that is pending in the District Court for 

the District of Columbia. In this brief, EPA argues that six months is not sufficient time to 

complete action on its coal ash rulemaking because EPA now has additional data on the location, 

size, and age of coal ash management units; the waste types in these units; and the liners present 

in these units; from work carried out by the Office of Water to develop new Clean Water Act 

effluent limitation guidelines for electric utilities and EPA wants to revise its risk assessment to 

incorporate that new data: 

Overall, the 2010 ICR data could allow EPA to model more precisely the risks 

associated with the range of practices currently used by steam electric generating 

unit facilities to manage and dispose of coal combustion residuals. ld. ~ 30. For 

example, these data will allow EPA to model the extent to which plumes of 

contamination leaching from coal combustion residual disposal units into 

groundwater are intercepted (and reduced) by surface water bodies that exist 

between a landfill or surface impoundment and a down-gradient drinking water 

well.ld. This modeling in turn would allow EPA to better estimate the 

contaminant levels that people would be expected to receive in drinking water. ld. 

These data would also allow EPA to better model the likely environmental risks 

(e.g., to fish and other aquatic life) from such contaminants. Id. 

EPA notes that one of the primary criticisms received in public comments by 

regulated industry was the absence of such an analysis. Id. ~ 32. These 

commenters claimed that EPA, in its risk assessment underlying the rulemaking 

proposal. had overestimated the human health risks from the many surface 

impoundments that are located adjacent to large surface water bodies, because the 

risk assessment failed to model the extent to which plumes of contamination 

leaching from coal combustion residual disposal units into groundwater are 

intercepted (and reduced) by surface water bodies that exist between a landfill or 

surface impoundment and groundwater. Id. Consideration of the 2010 fCR data 

would allow EPA to respond to these comments. ld. 

6 
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82182.032

The public has not yet had an opportunity, however, to comment on the 20 I 0 ICR 

data or on the methodology EPA could use to conduct such analyses.ld. 'Ii 34.7 

Taken together, the new data and analyses have the potential to significantly 

affect the risk assessment supporting the final rule. This final risk assessment, in 

turn, will drive many of the decisions with respect to the contents of any final 

regulations.ld. Given the importance of the final risk assessment, EPA believes 

the failure to provide an opportunity for additional public comment could 

jeopardize the legal defensibility ofa final decision.ld. Thus, EPA needs 

sufficient time to make this new data available for public comment, and to assess 

the comments that will be received. 

Appalachian Voices, et al. v. EPA, Civ. No. I :12-cv-00523, Document 24-1 (D.D.C. Oct. II, 

2012), at 23-24. 

States and the regulated community have opposed EPA's proposal to regulate coal ash as a 

hazardous waste under subtitle C of RCRA. On the other hand, environmental groups have 

opposed EPA's proposal to regulate coal ash under subtitle D ofRCRA. Concern has also been 

raised that EPA's proposed subtitle D option does not take advantage of existing state regulatory 

programs. EPA itself has expressed the concern that "EPA lacks the authority to require state 

permits, approve state programs, and to enforce the criteria." 75 Fed. Reg. at 35194. Given the 

many concerns raised with EPA's proposal, any final rule is likely to be challenged in court. 

"The Coal Ash Recvcling and Oversight Act 0(2013" 

The Coal Ash Rccycling and Oversight Act of2013 addresses many of the issues identified with 

EPA's proposed rulemaking by giving EPA and states additional authority. 

The Act would address industry and state concerns by regulating coal ash under subtitle D of 

RCRA and by providing for continued state regulation of coal ash. The Act would address EPA 

7 
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82182.033

and environmental group concerns by setting forth specific criteria for coal ash permit programs. 

giving EPA authority to review and approve state permitting programs. and to directly enforce a 

federal permitting program in states without an approved state program. Finally. by codifying 

the management standards directly in the statute, the Act relieves EPA of the responsibility to 

identify and quantify any risks associated with coal ash management and to justify management 

measures to address those risks. 

Some questions have been raised about how the Coal Ash Recycling and Oversight Act of 20 13 

would be implemented, including questions raised by the Congressional Research Service (CRS) 

in a March 19,2013 analysis oflegislation introduced in the 1 12th Congress. The draft 

legislation that is the subject of this hearing is essentially the same as S. 3512 from the I 12th 

Congress so the CRS questions and responses to those questions remain relevant. 

First, the CRS analyst questions the absence of a performance standard, such as "protection of 

human health and the environment" and notes that when authorizing regulatory programs under 

RCRA, Congress often establishes a performance standard and then leaves it up to EPA to 

decide, through regulation. what management practices will meet the performance standard. 

In the case of coal ash, such a grant of general authority to EPA may not support EPA's ability to 

regulate coal ash at the federal level, contrary to the assumption of the CRS analyst. As noted 

above, EPA has been unable to develop a risk assessment that accurately reflects risks associated 

with the management of coal ash and therefore any regulations the Agency may issue to meet a 

protection of human health and the environment standard would be legally vulnerable. Instead, 

the legislation incorporates by reference management practices that EPA has already found to bc 

8 
110 


82182.034

protective of human health and the environment, i.e., standards applicable to municipal solid 

waste landfills under 40 C.F.R. Part 258. According to EPA: 

Based on the Agency's substantial experience with these requirements, EPA believes that 

the part 258 criteria represent a reasonable balance bctwcen ensuring the protection of 

human health and the environment from the risks of these wastes and the practical 

realities offacilities' ability to implement the criteria. 75 Fed. Reg. at 35193. 8 

The legislation also adopts criteria for landfills and surface impoundments that are based on 

criteria in EPA's June 20 I 0 proposed subtitle 0 rulemaking.9 By codifying Part 258 regulatory 

requirements and additional landfill and surface impoundment regulatory requirements directly 

in the statute, EPA is relieved of the responsibility of justifying the need for imposing these 

requirements through a risk assessment. 

Second, while the CRS analyst concedes that the legislation gives EPA the authority to review state 

programs, the analyst raises the concern that the standard to be applied is whether the state program 

is "deficient" rather whether the state program is "adequate," a word that is used in section 4005 of 

RCRA. This concern appears to be based on the belief that Congress should not use words in statutes 

that it has not used before because old words have been interpreted by EPA while new words have 

not. EPA's ability to interpret statutory language is not limited by the draft legislation so it docs not 

appear that EPA would be any less able to interpret the word "deficient" that it was able to interpret 

the word "adequate" when Congress first enacted section 4005 of RCRA. This question seems to 

imply that prior Congresses should be able to bind subsequent Congress to their word choices. 

8 In fact. EPA has already put its belief into practice by approving the disposal of coal ash recovered from the TV A 

Kingston spill in a subtitle D landfill. See Administrative Order and Agreement on Consent. In the Matter of TVA 

Kingston Fossil Fuel Plant Release Site. Roane County. Tennessee. (May 6. 2009). at ~ 45. 

9 Congress has previously incorporated EPA regulations into a statute. In 1996. alter EPA regulations denning the 

scope of Superfund liability I,,, lenders were struck down by a court. Congress incorporated those regulato!) 

provisions directly into the stalute. P.L. 104·208 (Sept. 30.1996). 

9 
111 


82182.035

Third, the CRS analyst questions the lack of an explicit direction to EPA to issue regulations that 

would codify the criteria set forth in the legislation. While EPA does have general rule-making 

authority in section 2002 of RCRA, given the specificity of the proposed statutory language setting 

forth criteria for state coal ash permit programs, it is unclear what would be added by the 

promulgation offederal regulations. other than a delay in implementation. The draft legislation does 

not compel EPA to go through what could be a meaningless regulatory exercise. 1O 

Fourth, the CRS analyst creates a definition of what constitutes "backstop authority" (a word that 

does not appear in the legislation) and then claims that the legislation does not provide EPA with 

authority to backstop state programs. Under the definition created by the CRS analyst, federal 

backstop authority is federal authority to take enforcement actions even when a state has an 

authorized program. That definition of backstop is not universally accepted. 11 A different 

definition of "backstop," is EPA authority to take an action if a state fails to do SO.12 The draft 

legislation requires EPA to implement a coal ash disposal penn it program if a state chooses not 

to or fails to develop a program that meets the criteria set forth in the legislation. 

Fifth, the CRS analyst questions whether states will create different definitions of"landtill," "surface 

impoundment," or "land-based unit." All three of these terms exist in RCRA, without statutory 

definition. The tcnns "landfill" and "surface impoundment," and "land-based unit" are defined in 

1O As with the regulation of underground storage tanks in Indian County. EPA could decide to promulgate a federal 

permitting program to apply in areas not covered by state programs. should coal ash management structures exist in 

such areas. 

11 Courts are split on \vhcther EPA retains authority to overfile under RCRA (i.e. file an enforcement action when a 

state with an approved program has already taken action). Compare Harmon Indus. v. Browner. 191 F.3d 894 (8th 

Cir. 1999) (holding that EPA may not overtile in RCRA cases given the unique statutory language that state 

programs operate "in lieu at" the federal program). with United States v. Power Eng'g Co .. 303 F.3d 1232 (10th Cir. 

2002) (holding that EPA may overtile in RCRA cases). 

12 Scott v. City of Hammond, 741 F.2d 992. 996 (7th Cir. 1984), cerl, denied, 469 U.S. 1196 (1985) (interpreting the 

Clean Water Act to give EPA the authority to take an action - here the establishment of a TMDL - where the state 

has failed to do so). 

10 
112 


82182.036

EPA's subtitle C regulations, 40 C.F,R, 260, I 0, While these definitions do not apply to subtitle D, it 

seems unlikely that states will have trouble interpreting these tenms under new section 40 II of 

RCRA. 

In general, the CRS analysis seems to believe that because the draft legislation is not identical to the 

existing statutory authority to regulate municipal solid waste landfills those differences will result in 

uncertainty, The basis for this concern or how the differences would somehow prevent the 

legislation from achieving its goals is not explained, 

Many of the questions raised in the CRS analysis are inherent in any authorization of new statutory 

authority, However, the existence of some tlexibility for both EPA and states to interpret statutory 

language does not mean that the legislation will not achieve its purposes, In fact, given the detailed 

criteria for coal ash management penmit programs that are specified in the draft legislation, there is 

less uncertainty with how this legislation will be implemented than many other environmental laws, 

which defer to EPA to create a regulatory program, 

II 
113 

Mr. SHIMKUS. Thank you very much. Time is expired. 

Now I would like to recognize Ms. Lisa Evans, Senior Administrative Counsel from EarthJustice. Thank you, and your full statement is in the record. You are recognized for 5 minutes. 

STATEMENT OF LISA EVANS 

Ms. EVANS. Thank you very much. Chairman Shimkus and members of the committee, I thank you for having me here to testify 

on this very important and very controversial draft discussion bill 

from Representative McKinley. I am Lisa Evans, Senior Administrative Counsel for EarthJustice, a national nonprofit public interest law firm dedicated to defending the right of all people to a 

healthy environment. 

On behalf of many public interest groups, thank you for holding 

the first legislative hearing on this complex bill. I am hopeful that 

his hearing will clarify the discussion draft’s contents, including 

the very significant criticisms and questions by two recent CRS reports. 

I am also hopeful that we can find common ground on this critical public health issue, as well as common ground on the objectives of any coal ash legislation. 

Without a doubt, when mismanaged, coal ash harms Americans 

nationwide by poisoning water and air and by threatening the very 

existence of communities living near high hazard dams. We must 

work together to establish regulations that, foremost, prevent injury to health, and ensure the safety of all communities, but which 

also allow for safer use of coal ash that improves our economy, environment, and again, our health. 

I trust that all in this room share this goal. In that spirit, I offer 

these comments. 

While the bill at issue raises many important questions, the following four are among the most critical to understanding the problems with the bill. First, does the bill establish a national protective standard and federal minimum requirements? In other words, 

will the bill require every state to implement coal ash programs 

that protect the health of all the residents? The CRS report twice 

says no. The bill cannot guarantee consistent national protection, 

and we agree. CRS points to the absence of a national protective 

standard, which is unique among federal environmental laws. This 

approach is not just new and unprecedented, it is inadequate. According to CRS, the failure of the bill to require the protection of 

human health and the environment, and to define key terms renders it impossible for the bill to guarantee that all states will implement consistent and health protective programs. 

Why is this so important? Currently, our Nation is a patchwork 

of widely different state programs, as Representative McKinley has 

pointed out. Tennessee and Alabama, for example, lack many basic 

and needed safeguards for the management of coal ash dams. To 

ensure full protection for the citizens of those states where there 

is considerable disproportionate impact on communities of color 

and low income communities, the bill must contain a national protective standard and minimum federal requirements. We agree 

with CRS that this bill has neither. 

114 

Secondly, does the bill provide EPA with backstop authority? In 

other words, does the bill provide EPA with clear and effective 

oversight to ensure that all state programs protect Americans from 

mismanaged coal ash? Again, the CRS reports twice say no, and we 

agree. According to CRS, the bill contains no backstop authority as 

that term is commonly understood. Pursuant to this bill, backstop 

authority can only be exercised when states fail to implement the 

co-called minimum requirements, but as CRS pointed out in two reports, the bill’s requirements are so vague that there are, in fact, 

no minimum federal standards. In other words, backstop authority 

is meaningless without a clear set of standards and deadlines that 

EPA can use to determine whether a state program is deficient. 

The CRS reports clearly say that the bill doesn’t provide that criteria. Further, this bill deliberately and effectively removes most of 

EPA’s authority over coal ash. EPA cannot take immediate enforcement action if a state fails to act. EPA cannot evaluate the adequacy of state programs before their implementation, and EPA cannot promulgate regulations where they are needed to protect health 

and the environment to reflect the increasing toxicity and changing 

nature of ash. 

Third, will the bill protect the Nation’s drinking water? No, it 

will not. The bill’s failure to phase out unlined ponds, its failure 

to set deadline for the permitting of dumps, its failure to require 

closure of polluting sites by a date certain, and its failure to ensure 

that all dangerous dumps are monitored will leave our water at 

risk of continued poisoning by arsenic, hexavalent chromium, lead, 

mercury, and more. 

Fourth and finally, will the bill prevent another catastrophic disaster? No, and yet I think all would agree that any bill must ensure that the earth and dams holding back millions of tons of toxic 

waste be made safe for all the communities unfortunate enough to 

live beneath them. 

I speak for many in the public interest community when I say 

that we, too, want an immediate end to the delay of the EPA’s rulemaking, but any rule or any bill foremost must protect public 

health and safety. Together, we can and must end the longstanding 

serious threat thousands of communities living near unsafe, unstable, and leaking coal ash dumps, because every person in this 

room, every family in your districts, every citizen in this country 

deserves water free from ash contamination, air free of dust, and 

a safe and secure community. 

I appreciate the opportunity to comment, and I look forward to 

questions. Thank you. 

[The prepared statement of Ms. Evans follows:] 

115 


82182.037

Testimony of 

Lisa Evans, Senior Administrative Counsel 

Earthjustice 

before the Subcommittee on Energy and Environment, 

Committee on Energy and Commerce, 

U.S. House of Representatives 

Hearing on the Discussion Draft of H.R. __ , The Coal Ash Recycling and 

Oversight Act of 2013 

Aprilll,2013 

Chairman Shimkus and Members of the Subcommittee, I appreciate the 

opportunity today to discuss the legislative proposal offered by Rep. David McKinley to 

address the management and disposal of coal ash. On behalf of many public interest 

groups, I thank you for holding the first legislative hearing on this very complex bill. 

am hopeful that this hearing will clarify the contents of the bill and its likely impact. I 

am equally hopeful that we can find common ground on this important public health 

issue. Without a doubt, when mismanaged, coal ash harms Americans nationwide by 

poisoning water and air and threatening the very existence of communities near high 

hazard dams. While coal ash, when safely reused in concrete and bricks, can offer 

environmental and economic benefits, it is absolutely essential that laws and regulations 

foremost protect human health and communities from exposure to hazardous chemicals. 

I am Lisa Evans, senior administrative counsel for Earthjustice, a national nonprofit, public interest law firm dedicated to protecting natural resources and wildlife, and 

to defending the right of all people to a healthy environment. I have worked previously 

as an assistant regional counsel for U.S. Environmental Protection Agency ("EPA") 

enforcing hazardous waste laws. 

In my testimony, I will cover briefly the serious threats posed to public health by 

coal ash and the inability of the proposed bill to adequately address these threats. With 
116 


82182.038

regard to public health, my concerns echo those of health experts, scientists, engineers 

and the EPA. My concerns about the substance, structure and impact of the Coal Ash 

Recycling and Oversight Act of 2013 mirror those enumerated by the Congressional 

Research Service (CRS) in their December 5, 2012' and March 19,20132 reports on an 

identical bill, S. 3512. 

I. MISMANAGEMENT OF COAL ASH CAUSES SEROUS HEALTH AND 

ENVIRONMENTAL DAMAGE 

A. Coal Ash Poses A Significant Human Health Hazard 

Coal combustion waste, or coal ash, is largely made up of ash and other unburned 

materials that remain after coal is burned in a power plant to generate electricity. Burning 

concentrates the metals naturally found in coal and results in an ash rich in toxic elements 

such as arsenic, cadmium, chromium, lead, mercury, selenium, thallium and numerous 

other dangerous contaminants.3 In addition, coal ash contains the particles captured by 

pollution control devices installed to prevent air emissions of particulate matter and other 

gaseous pollutants from the smokestack. As new technologies are mandated to filter 

additional hazardous air pollutants from power plants, cleaning the air we breathe of 

smog, soot and other harmful pollution, the quantity of dangerous chemicals in coal ash 

exponentially increases: Without adequate safeguards, the chemicals that have harmed 

human health for years as air pollutants, including mercury, arsenic, chromium, lead and 

I Congressional Research Service, H.R. 2273 and S. 3512: Analysis ~f Proposals to Create a Coal Combustion 

Residuals Permit Program Under RCRA, (hereinafter, "2012 CRS Report") (Dec. 5, 2012). 

2 Congressional Research Service. Analysis of Recent Proposals to Amend the Resource Conservation and Recovery 

Act (RCRA) to Create a Coal Combustion Residuals Permit Program. (hereinafter "2013 CRS Report") (Mar. 19, 

2013). 

3 Office of Solid Waste & Emergency Response, U.S. Envt!. Prot. Agency, Report to Congress; Wastes from the 

Combustion of Fossil Fuels (Mar. 1999). 

, See, e.g., Office of Research & Dev .. U.S. Envt!. Prot. Agency, Characterization of Coal Combustion Residues 

from Electric Utilities Using Wet Scrubbers for Multi-Pollutant Control (July 2008) and Office of Research & Dev., 

U.s. Envt!. Prot. Agency, Characterization of Mercury-Enriched Coal Combustion Residues from Electric Utilities 

Using Enhanced Sorbents for Mercury Control (Feb. 2006). 

2 
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82182.039

thallium, will now reach us through drinking water supplies and airborne dust 

contaminated by ash. 

The hazardous substances found in coal ash are among the most deadly known to 

man, including toxins that can cause cancer and damage the nervous systems and other 

organs, especially in children. (See Figure I, Table of Human Health Impacts of Coal 

Ash Pollutants.) One of the most common and mobile pollutants in coal ash is arsenic. 

Arsenic has been found to cause multiple forms of cancer, including cancer of the liver, 

kidney, lung, and bladder, and an increased incidence of skin cancer in populations 

consuming drinking water high in inorganic arsenic.s According to the Human Health 

and Ecological Risk Assessment completed by the EPA in 2010, the excess cancer risk 

for children drinking groundwater contaminated with arsenic from some unlined coal ash 

ponds is estimated to be as high as I in 50.6 For context, the EPA typically considers 

cancer risk to be unacceptable when environmental exposures result in more than one 

additional cancer per 100,000 people.' Consequently, a lifetime cancer risk of I in 50 

represents a risk 2000 times the EPA's regulatory goals. 

The EPA risk assessment also states that living near coal ash ponds and landfills 

that lack composite liners increases the risk of damage to the liver, kidney, lungs and 

other organs as a result of being exposed to toxic metals like cadmium, cobalt, lead, 

thallium and other pollutants at concentrations far above levels that are considered safe.'. 

Further, the EPA risk assessment warns that peak pollution from dump sites can occur 

'Ii.S. Envtl. Prot. Agency, Integrated Risk Information System (IRIS), Arsenic (CASRN 7440-38-2). 

http://cfpub.epa.gov/nceaiiris/index.cfmOfuseaction=iris.showQuickYiew&substance_nmbr=0278. 

"U.S. Envtl. Prot. Agency, Human and Ecological Risk Assessment ofCoa1 Combustion Wastes (AprillO, 2010) 

(draft) (hereinafter EPA Risk Assessment). 

7 EPA Risk Assessment, supra note 3. at 4-1. , Id. 

3 
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82182.040

long after the waste is placed. For example, peak exposures from coal ash ponds are 

projected to occur approximately 78 to 105 years after the ponds first began operationthus retired sites still pose very significant threats.' Clearly, coal ash, when disposed 

improperly, poses an extraordinary and highly unacceptable long-term risk to human 

health. 

B. Advances In Scientific Analysis Of Coal Ash Reveals Dramatically Increased 

Risks 

Several studies published by the EPA's Office of Resource and Development 

("ORD") in 2006,2008 and 2009 document the increasing toxicity of coal ash.lO Testing 

of numerous ashes and scrubber sludge at plants employing air pollution control devices 

reveal that coal ash is far more dangerous than earlier tests predicted. Using an improved 

leaching protocol," the EPA found that coal ashes and sludge leached 16 to 680 times the 

chromium, arsenic, selenium, boron and thallium than previously documented in EPA 

and industry data. In fact, the EPA found that some coal ashes leached toxic metals, such 

as arsenic, barium, chromium and selenium, at levels that far exceeded federal thresholds 

established for hazardous waste." 

This evidence of increased risk was unavailable when the EPA issued its 1988 

and 1999 Reports to Congress on coal ash and when it issued its regulatory 

9 ld. at 4-7 to 4-8. 

10 See Office of Research and Development, u.s. Envtl. Prot. Agency, Characterization oj Coal Combustion 

Residuesjrom Electric Utilities-Leaching and Characterization Data (EPA/600/R-09IlS1) at ii (Dec. 2009), 

available at http://www.epa.gov/nrmrl/pubs/600r091511600r091S1.htm1(citing EPA, Characterization oj MercuryEnriched Coal Combustion Residualsjrom Electric Utilities Using Enhanced SorbentsJor Mercury Control (EPA6001 R-(6/008) (Feb. 2006), available athttp://www .epa.gov/ORD/NRMRLlpubs/600r06008/600r06008.pdf: and 

EPA, Characterization oJ Coal Combustion Residualsjrom Electric Utilities Using Wet Scrubbers Jar MultiPollutant Control (EPA-6001 R-08!077) (July 2008), available at 

http://www.epa.gov/nrmri/pubs/600r08077/600r08077 .pdf. 

11 See D.S. Kosson et aI, An Integrated FrameH'orkjor Evaluating Leaching in Waste management and Utili:ation 

oj Secondary Materials, 19 Environmental Engineering Science 159 (2002) and F. Sanchez and D.S. Kosson, 

Probabilistic Approach Jar Estimating the Release a/Contaminants under Field Management Scenarios, 25 Waste 

Management 643 (2005). 

12 Supra at footnote 10. 

4 
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82182.041

detenninations on coal ash in 1993 13 and 2000. 14 Central to these recent ORD studies is 

the rejection of an older leach test, the toxicity characteristic leaching procedure (TCLP). 

Historically, estimating metal release from coal ash has been based on the results of a 

single-point extraction test, the TCLP, which was designed to simulate a single 

"mismanagement" disposal scenario. IS For nearly two decades, however, the EPA 

Science Advisory Board has identified significant problems with the accuracy of the 

TCLP.!6 In 2006, the National Academy of Sciences also acknowledged the inaccuracy of 

the TCLP and weighed in with explicit criticism of its use for testing coal ash.17 Thus the 

EPA's previous reports and regulatory detenninations were based on the outdated TCLP 

testing, which according to the scientific community, has no little or no relevance to coal 

ash. 

The new evidence contained in the ORD reports underscores the need to 

reevaluate the risk posed to water supplies by coal ash. The evidence also indicates that 

unless coal ash is disposed or reused in a manner that ensures that toxic chemicals are not 

released into the environment, our careful efforts to capture the pollutants at the power 

plant stacks will have an unintended, and unwelcome consequence-the pollution of our 

water. 

13 58 Fed. Reg. 42,466 (Aug. 16, 1993),111110:'1',\\\\\'.'-11:1 

14 65 Fed. Reg. 32.214, (May 22, 2000). 

"Susan A. Thomeloe, EPA, et aI., the Fate of Metals in Air Pollution Control Residues from Coal-Fired 

Power Plants, 44 Envt1. Sci. Technol. 7,351,7,351 (Aug. 31, 2010) fhereinafterThomeloe, Evaluating the Fate of 

Metals], available at lmR;lLpu~_'ic"1'O",1l-g/doi!Icdf!l1l!siHU (l;] i(.'.L01.0.;>'5R 

'6 Letter from EPA, Science Advisory Board, to Carol Browner, Administrator, EPA, Re: "Waste Leachability: The 

Need for Review of Current Agency Procedures" (Feb. 26,1999) (emphasis in original), available at 

\y\y~v .y\),',cn1ite .en<j.go\isah/\abprod.t.lL"t Jl"U .. JSFiJclccl'm9902 .pdf 

"Nat'! Research Council. Nat'! Academies, Managing Coal Combustion Residues in Mines (2006), available at 

bHn.jJ~.qq.h.~.;Imp,,&~tq 1\;:JJ~.lqg.,phlt):~~:(mL i~J=.1 1.~2~.#1~).<": at 1 23- 129. 

5 
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82182.042

C. Evidence of Coal Ash Contamination Is Increasing Exponentially 

Sites where coal ash has contaminated ground water or surface water have 

increased 25-fold since 1999 to more than 200 sites in 37 states." At these sites, coal ash 

has poisoned drinking water, destroyed entire fish populations, killed scores of livestock, 

created myriad superfund sites, sickened families and destroyed livelihoods.'9 These sites 

include leaks, major spills, and thc pcrvasivc contamination of underground drinking 

water sources. The contamination includes toxic metals at concentrations hundreds of 

times above safe drinking watcr standards and involves chcmicals hazardous to humans 

or aquatic life in small doses, including arsenic, cadmium, chromium, lead, mercury and 

selenium. The damage at most of the newly identified sites is largely unmitigated, and it 

represents present disposal practices, not just historical practices. Furthermore, these 203 

contaminated sites do not even include those communities that have been inundated with 

toxic coal ash dust, of which there are scorcs located throughout the U.S. Lastly, these 

cases of documented watcr contamination are likely to be only a small percentage of the 

coal-ash contaminated sites in the U.S., bccause most coal ash ponds and many coal ash 

landfills do not conduct monitoring, so water contamination largely goes undetected. 

D. Coal Ash Poses A Serious Threat To Fish and Wildlife 

One of coal ash's most mobile toxins, sclenium, is deadly at low concentrations to 

fish. Yet almost everyone of the nation's hundreds of unlined coal ash dumps sits near a 

river, stream or lake. The loading of selenium to these waterways, by spills, seeps, 

I R See h tt~l:l££ill1b.iillJi1;J;"QJ:g!f~ill!!r~_'-lL1lmna i!.! n \ti!l:11illJJ1-~: ~y ;U:iJJJ1I.::11\h:..~.n.IJl;J)JJ j.!lm~:~l:~ Lt,~ 2. 

19 See EPA, Proposed Rule, Coal Combustion Residuals from Electric Utilities, 75 Fed. Reg. 35,1 28 (proposed June 

21,2010); Environmental Integrity Project (ElP), Earthjustice, & Sierra Club, In Harm's Way: Lack of Federal 

Coal Ash Regulations Endangers Americans and their Environment (Aug. 26, 2(10). available at 

h~m:/l~l}yironmentalint~gr.i..ty,q.rg!n~\\'s renm·t:"./.U(.)~'~l.n}~Dl.,~/!NHA.RMS\V!~ Y f.l0,:\L~.pdf: ElP and Earthjustice, 

Out of Control: Mounting Damages from Coal Ash Wasle Sites (Feb. 24, 2011). available at 

D1ti"0!i.:"-IlJ:lQ[lJoJlf.e.0J]Ls.lJ,,-sLcLeJiLllJ;,il!lesclll"EllyII:eJ'-ltrLs/g.l:".U:'[I/rl"r!\lUl-"t-~\l"!\\QJ.:.I.UliJl.lldt: Office of Solid Waste, 

6 
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surface discharges or groundwater pathways has poisoned dozens of aquatic 

environments and killed or impaired fish, amphibians, and the wildlife that feed on 

them.20 Selenium bioaccumulates, so this damage is deadly and long lasting." A series 

of recent studies by Duke University scientists identified the long-term ecological threat 

to the waterways impacted by the 2008 TV A spill and to numerous lakes and rivers 

throughout North Carolina by the ongoing discharge of prodigious volumes of heavy 

metals from coal ash ponds." 

E. State Coal Ash Regulations Are Grossly Deficient In The Majority of States 

The majority of states fail to require essential safeguards for coal ash landfills and 

surface impoundments, including liners, groundwater monitoring, leachate collection, 

dust controls and financial assurance. According to EPA data, the majority of states fail 

to prohibit the placement of coal ash in water tables, wetlands, unstable areas and 

floodplains. The EPA's own analyses of state regulatory programs in 2005,2006 and 

201 0 reveal that many states have not improved their regulations to close these gaps over 

the last decade?3 

o National Research Council, National Academy of Sciences, Managing Coal Combustion Waste in Mines (2006), 

lllp: \\ \\ \\ ,c:nJ'.us. l\.'-.\Jun:t.:''> rdl1l;"::~ pl.'\\L'r plillll __ \\<l:-.!<.' :\,\S ('ll;d :\,,11 rull_ Rcp()rt.pJL 

'Id. 

2 See Laura Ruhl, Avner Vengosh. Gary S. Dwyer, Heileen Hf..u-Kim, Amrika Deonarine, Mike Bergin, and Julia 

Cravchenko. Survey of the Potential Environmental and Health Impacts in the Immediate Aftermath of the Coal Ash 

,pill in Kingston, Tennessee, Environ. Sci. Techno!., 2009, 43 (16), pp 6:126 6333. May 4, 2009. See aim, Laura 

(uhl. Avner Vengosh, Gary S. Dwyer, Heileen Hsu-Kim, Grace Schwartz, Autumn Romanski, and S. Daniel Smith. 

~he Impact afeoal Combustion Residue Effluent on Water Resources: A North Carolina Examp1e. Environ. Sci. 

~echnoJ., 2012 Nov 6:46(21): I 2226-33. 

3 See 75 Federal Register 35128, 35150. The EPA stated "Further, recently collected infonnation regarding the 

xi sting state regulatory programs 42 calls into question whether those programs. in the absence of national 

ninimum standards. have sufficiently improved to address the gaps that EPA had identified in its May 2000 

(egulatory Detemlination such that EPA can continue to conclude that in the absence of federal oversight. the 

nanagement of these wastes will be adequate to protect human health and the environment." See also, EPA. 

legulatory Impact Analysis For EPA's Proposed RCRA Regulation Of Coal Combustion Residues (CCR) 

,enerated by the Electric Utility Industry (April 30, 20 I 0). 

7 
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82182.044

In the most recent Congressional Research Service report on coal ash, CRS 

describes the gap in state regulations identified by the Association of State and Territorial 

Solid Waste Management Officials ("ASTSWMO") in 2009.24 CRS cites a 2009 survey 

of states by ASTSWMO that found that among survey respondents, basic safcguards for 

surface impoundmcnts were not mandated by most states. CRS notes that 67 percent of 

states failed to require liners and 61 percent of states failed to rcquire groundwater 

monitoring for surfacc impoundments."5 According to CRS, "the majority of states 

responding to the survey also did not have siting controls, inspection, or structural 

integrity requirements for surface impoundments-requirements necessary to minimize 

the potential of a structural failure."'" CRS also cites data gathered by the EPA in 2004 

that indicates that 62% of coal ash ponds in the U.S. and 31 % of the landfills in the U.S. 

lacked liners." In addition, 58% of the coal ash ponds and 10% of coal ash landfills 

lacked groundwater monitoring." 

F. Coal Ash Harms America's Most Vulnerable Communities 

According to the EPA. coal ash ponds and landfills are disproportionately located 

in low-income communities. Almost 70 percent of coal ash ponds in the U.S. are in areas 

where household income is lower than the nationalmcdian29 Consequently, communities 

of color and low-income communi tics will be disproportionally hurt by the failure to 

24 2013 CRS Report at 25. 

" /d. 

16 /d. 

27/d. 

2H ld. 

29 U.S. Census Bureau, Census 2000 Summary File 3 (SF 3) - Sample Data. All5-Digit ZIP Code Tabulation Areas 

(860), Table P53 "Median Household Income in 1999 (Dollars)", available at 

hl.1P: .'Elc.tfin_d~~ .. ~e.ns.Lt.~.,gQ~/~~.nld 'PCSubjg~tK~y\\..qr.9~~r\:1t;C ts=3(!.797X3()!)69, Further, of 181 

ZIP codes nationally that contain coal ash ponds. 118 (65.19 pe~~ent) have above-average percentages oflowincome families. See U.S. Census Bureau. Census 2000 Summary File 3 (SF 3) - Sample Data. All 5-Digit ZIP Code 

Tabulation Areas (860), Table P76 "Family Income in 1999" (downloaded June 23. 2009). available at 

bJll2I~HlfJlliill~L£'~lSll~· gO \'/ ~~~~1~1'"Q.Q.~~Jll.91!'QJ2m~~L~£.[~:J~(i."Jm:! ~~tD~~LJ sc:. 2_(~I~J ~Jl:!. L~i) 

8 
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control coal ash contamination. Given the serious health threats posed by coal ash, it is 

particularly troublesome that coal ash impoundments are disproportionately located in 

low-income communities, where residents are more likely to rely on groundwater 

supplies and less likely to have access to medical insurance and care. In view of the 

national disparity found by the EPA, a federal coal ash rule that applies equally in all 

parts of the country is necessary to alleviate the disparate impacts of ash disposal under 

the present patchwork of state laws. 

II. THE CONGRESSIONAL RESEARCH SERVICE CONCLUDES THAT THE 

"COAL ASH RECYCLING AND OVERSIGHT ACT OF 2013" CANNOT 

GUARANTEE PROTECTION OF PUBLIC HEALTH AND THE 

ENVIRONMENT FROM THE THREATS POSED BY COAL ASH 

Twice in the last six months, the Congressional Research Service published 

reports on proposed coal ash legislation in the House and Senate, and both times CRS 

concluded unequivocally that such bills lack a clear purpose and would not ensure state 

adoption and implementation of minimum standards "necessary to protect human health 

and the environment."'o Specifically, on December 5, 2012, the CRS issued a report on 

pending coal ash legislation, entitled H.R. 2273 and S. 3512: Analysis of Proposals to 

Create a Coal Combustion Residuals Permit Program Under RCRA." Following the 

publication of this report, Republican supporters of the legislation claimed that the CRS' 

conclusions were erroneous and may have been "politically motivated," and they pressed 

CRS to revise the report." 

On March 19,2013, CRS published a second report, Analysis of Recent Proposals 

30 Congressional Research Service, H.R. 2273 and S. 3512: Analysis oj Proposals to Create a Coal Combustion 

Residuals Permit Program Under RCRA, (hereinafter, "CRS Report 2012") (Dec. 5,2012) at SummalY. 

31 Id. 

32 Hopkinson, Jenny. Inside EPA. "Under GOP Pressure. CRS Said To Weigh Changes To Coal Ash 

January 17.2013, available at 

PX9.'\\H!~~.:SL~.-,)a i.~t:-tQ:- WL'i ~11~·. L' hqn g~ s-tn-u )<1.1-<1:-.,11- r~p(~l~VI1) (11 v-).,,1 :-.5 . .6.~ .h t 1}1 J 

9 
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to Amend the Resource Conservation and Recovery Act (RCRA) to Create a Coal 

Combustion Residuals Permit Program, wherein CRS expanded its analysis and 

reiterated the conclusions of the first report." The authors of this second report included 

the original analyst, but also included two additional senior CRS analysts. CRS' March 

2013 report again found that the legislation's "unique" approach fell far short. The report 

reiterated the uncertainty engendered by a bill that fails to guarantee basic nationwide 

protections and fails to provide EPA with the authority to write rules, approve state 

programs and enforce safety requirements. The CRS reiterated that the bills contain no 

clear deadlines for states to issue permits and that terms usually defined by regulations 

would be left open for the states to decide. If the purpose of the legislation was to close 

significant gaps in health and safety protections that were identified by the EPA, this 

purpose was not achieved with certainty, according to CRS. 

Among the critical findings of the CRS report are the following: 

A. The Bills Fail To Establish A Protective Standard 

Current RCRA state programs for the disposal of municipal solid waste are 

required by statute to meet a national standard of protection to "protect human health and 

the environment.,,35 The 2013 CRS Report reiterates its finding that the proposed coal ash 

bills fail to establish any national protective standard, stating "[tjhere is no provision in 

Section 40 II that explicitly requires regulations promulgated by the state and 

33 Congressional Research Service. Analysis oj Recent Proposals to Amend the Resource Conservation and RecO\'ery 

Act (RCRA) to Create Q Coal Combustion Re.<iduals Permit Program, (hereinafter "CRS Report 2013") (Mar. 19, 

2013). 

)., Martinson, Erica. Politico, "CRS doubles down on criticism of coal ash bills," March 20, 2013, available at 

10 
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82182.047

implemented by a CCR Permit Program to achieve a certain level of protection.,,'6 Both 

CRS reports explicitly conclude that under the novel and unprecedented approach of the 

bills, "[eJach state arguably could apply its own standard of protection."" 

The practical impact of the failure to establish a protective standard is quite 

simply that state regulations would not necessarily be required to "protect human health 

and the environment." Thus, in the absence of a protective standard, the EPA would have 

no authority to assert as a "program deficiency" the failure of a state to protect human 

health or the environment. The CRS explains, "The absence of an explicit statement in 

the bills has implications for how EPA might exercise its authority in the event of absent 

or deficient state action."'s CRS observes that, unlike the federal municipal solid waste 

pemlit program, the bill would curtail EPA oversight to an exceptionally narrow range of 

issues. CRS writes, "EPA would not be authorized to identify as a deficiency the 

program's adequacy to enforce federal statutory standards or to assess the level of 

protection the program may provide.",9 

B. The Bills Fail To Establish Minimum Federal Standards 

The bills fail to establish minimum federal standards for the management and 

disposal of coal ash under state permit programs. The 2013 CRS Report concludes that 

the bills would "allow individual states to define key terms .... Hence program 

applicability could vary from state to state, depending on how each state defines those 

terms.,,40 The report explains: 

'" 2013 eRS Report at 38. See also, 2012 eRS Report at 30. 

2013 eRS Report. Summary at page 3. 

" Id 

J9 2012 eRS Report at 25. 

4() 20]3 eRS Report. Summary at page 2. 

11 
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82182.048

Permit programs were created previously under RCRA when 

Congress wanted to ensure that certain solid waste disposal 

facilities would be subject to regulatory criteria that achieved a 

minimum national standard of protection and that a permit 

program would be implemented to assure facility compliance with 

that standard, The proposed statutory criteria included among the 

Permit Program Specifications are not comparable, in scope or in 

detail, to those identified by EPA as those necessary to protect 

human health }i'Dln risks specific to CCR disposal alld use (in the 

June 2010 EPA proposal), Absent directives that regulations 

promulgated and applied to CCR structures achieve a federal 

standard of protection, states might promulgare and implement 

regulations according to a stale-established standard of 

protection, which might vary from state to state ," 

Even after publication of the 2012 CRS Report, proponents of the Coal Ash 

Recycling and Oversight Act continued to incorrectly claim that the bill established 

"minimum federal standards,"" Proponents of the bill claimed that the federal municipal 

solid waste (MSW) landfill regulations constituted such minimum federal standards, CRS 

points out explicitly, however, that this is simply not correct. CRS states, "given the 

flexibility that states would have to define several key program elements, it cannot be 

predicted whether state programs to regulate CCRs, developed and implemented pursuant 

to provisions in Section 4011, would result in the management of CCRs comparable to 

the existing programs to regulate MSW landfills,""' In no uncertain terms, CRS explains, 

"[dJue to the questions regarding how states may implement it, a CCR permit program 

would be similar to the program to regulate Municipal Solid Waste (MSW) landfill 

critcria, only in stares thar choose to implemellf it as such, That level of uncertainty 

" 2013 CRS Report at 16, Emphasis added, 

See Energy and Commerce Committee, "In Closing Days of 112th Congress, Rare Opportunity Emerges to Pass 

Bipartisan, Bicameral Agreement on Coal Ash," (December 19,2012), available at 

121h-co!lgre~:---r')l);.-nppp.nl.l!1iry-emergJ·,"-pa,,:-.-

12 
127 


82182.049

defeats the purpose of a permit program and would not be consistent with other permit 

programs created under RCRA."44 

CRS specifically points out that certain key directives critical to program 

implementation are either missing from or ambiguously defined in Section 4011. It would 

appear that those missing/ambiguous directives would be subject to a state's 

intcrpretation of those requirements (e.g., a distinct definition of entities subject to the 

permit program (i.e., "structures") and deadlines for existing facilities to obtain a permit). 

As a result, according to CRS, it cannot be determined whether CCR permit program 

implementation would create minimum federal standards, comparable to the MSW 

landfill criteria, to regulate CCR management."" 

C. The Bills Lack Federal Backstop Authority 

Both CRS reports are unequivocal about the failure of the Coal Ash Recycling 

and Oversight Act to provide EPA with "backstop authority." The 2013 CRS Report 

unambiguously states that the bill "would not provide EPA with authority to backstop 

state programs to regulate CCR facilities."46 Similarly, the 2012 CRS RepOlt was crystal 

clear, stating, 

The proposed amendments to RCRA include no directive to EPA 

to determine whether state CCR pennit programs are adequate to 

enforce the statutory standards or to assess whether the programs 

would result in necessary protections. Instead, EPA would be 

required to notify states of deficiencies in a narrow range of 

program requirements. Given other limits to EPA's role in state 

implementation of a CCR permit program, EPA would have no 

federal backstop authority to implement federal standards 

comparable to its authorities established under other environmental 

law, including RCRA. Regardless of whether a state ehose to adopt 

a CCR permit program. EPA would have 110 authority to compel 

" 2012 CRS Report at 21-22. emphasis added. 

45 2012 CRS Report at 20. 

"2013 CRS Report at 9. 

13 
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82182.050

states to adopt and implement the program according to provisions 

in the proposed amendments to RCRA:,47 

D. CRS Finds the Requirements for Wet Impoundments Insufficient 

The CRS reports conclude that the requirements concerning structural stability of 

coal ash ponds in the Coal Ash Recycling and Oversight Act 4' are not equivalent "in 

detail or scope" to the safeguards proposed by the EPA to ensure the structural stability 

of dangerous coal ash dams.'9 According to CRS, the EPA modeled its proposed coal ash 

impoundment standards on the Mine Safety and Health Administration ("MSHA") 

regulations in 30 C.F.R. Part 77. In particular, the EPA drew from the MSHA mine safety 

standards for "water. sediment, or slurry impoundments and impounding structures" at 30 

C.F.R. §77 .216.50 According to CRS, the EPA's decision to draw from the MSHA 

standards was based on its belief that records compiled by MSHA for its rulemaking (for 

30 C.F.R. Part 77) and the agency's 40 years of experience in implementing those 

requirements "provided evidence that similar requirements, applied to CCR surface 

impoundments, will prevent a catastrophic release of CCRs from surface impoundments, 

as occurred at TVA's facility in Kingston, TN, and will generally meet RCRA's mandate 

to ensure the protection of human health and the environment."" 

CRS points out that the EPA's proposed criteria "included more detailed 

requirements comparable to the MSHA standards" than are present in the proposed 

legislation.51 In fact, the bill's structural integrity section is riddled with gaps that render 

"2012 CRS Report at 2. Emphasis added. 

"See §§ 401 I (c)(I)(B) and 4011(c)(I)(A). 

'92012 CRS Report at 24. See a/so, 2013 CRS Report at 39. 

50 See proposed 40 C.F.R. Section 257.71, "Design criteria for existing CCR surface impoundments." C.S. EnvtJ. 

Prot. Agency, "Haz.ardous and Solid Waste Management System; Identification and Listing of Special Wastes; 

Disposal of Coal Combustion Residuals From Electric Utilities," 75 Federal Register 35128, June 21, 2010. 

51 2013 CRS Report at 27. See 75 Federal Register 35128, at 35243, June 2010. 

"2013 CRS Report at 30. 

14 
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82182.051

it clearly insufficient to prevent future dam failures. For example, the bill does not require 

owner/operators of coal ash dams to report to their state regulatory agencies the content 

of inspections, even when serious deficiencies are found. The bill also does not require 

public disclosure of inspections. The bill also does not require an owner/operator to 

remedy deficiencies in a timely manner or require the state to take action -no matter 

what problems were discovered in an annual inspection:" Lastly, there is no requirement 

that annual inspections begin one year, five years, or even decades after enactment of the 

bill. The initiation of inspections is wholly dependent on when a state begins to 

implement its permit program, which is entirely discretionary to the state. 

Even if the bill required annual inspections to begin immediately, however, the 

usefulness of these inspections is extremely suspect. The bill simply requires that an 

engineer. hired by the utility, certify that the design of the structure is "in accordance 

with recognized and generally accepted good engineering practices."" The bill does not 

require engineers to employ federal standards in this certification. submit such 

certification to the state or EPA, or make such certification public. As stated above, if the 

engineer cannot certify that the "construction and maintenance of the structure will 

ensure dam stability,"" the bill requires nofurther action by the utility or the state. 

Lastly, the bill does not require the state or EPA to ever inspect dams themselves, even if 

such impoundments are found to be deficient or are categorized as high or significant 

hazard. 

"See Section 4011(c)(I)(B). 

"See § 4011(c)(l)(B)(i)(I). 

"!d. § 401 1 (c)(1)(B)(i)(II). 

15 
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82182.052

E. The Bill Fails to Set Any Deadlines for Permit Issuance 

The CRS reports also observe that the bills would "establish no explicit deadlines 

for the issuance of penn its or for facility compliance with applicable regulations, 

allowing individual states to cstablish such deadlincs.,,·56 According to CRS, "States must 

certify that they have a pennit program that meets the penn it program specifications 

within three years of enactment. However, no deadline is ;pecifiedfor states to issue 

permits or to compel owner/operarors of CCR structures to operate in compliance with 

permit condirions ."57 

Thus States have no deadlines whatsoever for implementing the entire permit 

system on which the bill's requirements are based 5R The absence of a deadline renders 

the bill nearly meaningless. Owners of coal ash disposal units need not obtain 

enforceable permits by any date certain. Since almost all thc requirements applicable to 

coal ash dumps are effective only through state pennits, compliance with needed 

safeguards can be delayed indefinitely (with the exccption of groundwater monitoring at 

some units). Further, without a deadline for states to actually issue permits, EPA 

oversight is an empty promise, and citizen enforcement of standards is legally impossible. 

F. The Bill Fails to Protect the Nation's Groundwater 

Seventy-seven percent of community water systems in the United States use ground 

water as their primary source, supplying drinking water to thirty percent of community water 

system users, or almost 90 million Americans.59 In addition, an estimated 15 million 

"2013 CRS Report. at Summary. 

" 2012 CRS Report at 22. Emphasis added. 

"See § 40ll(c)(1)(E). 

59 See bH12://\\'\\·\l-,"~'1h .. ~lZn~:lt~.;.mm:;;.:~rmill~L~~lt~.nl)Yill:£n~ssl, citing U.S. Environmental Protection Agency, Fiscal 

Year 2010 Drinking Water and Ground Water Statistics. Updated in 2012. 

16 
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82182.053

American households get their water from private ground water wells.60 Coal ash legislation 

must ensure that coal ash landfills and surface impoundments do not leach hazardous 

contaminants into groundwater. The Coal Ash Recycling and Oversight Act of 2013, 

however, fails to offer such protection. 

As explained above, the bill fails to ensure that all states and all dump sites have the 

baseline protections offered in the Municipal Solid Waste Landfill regulations. The bill's 

failure to phase out unlined ponds, to set a deadline for pennitting all disposal sites, to define 

the universe of regulated disposal units,"J to require closure of polluting dumps by a date 

certain,62 and its failure to ensure that all dangerous sites are monitored will leave the 

nation's ground water at risk of continued poisoning by pollutants hannful to human health 

in minute concentrations, including arsenic, hexavalent chromium, lead, mercury and more. 

G. The Bill Fails to Require Adequate Fugitive Dust Controls 

The bill does not require the control of fugitive dust sufficient to protect the health 

of communities residing near coal ash ponds and landfills. According to CRS, the EPA 

found risks and actual evidence of human exposure from "fugitive dust emissions, when 

fine particulates in the dried ash become airborne as at landfills or large-scale fill 

operations."" Yet the Coal Ash Recycling and Oversight Act of 2013 simply directs a 

state agency to "address" wind dispersal of coal ash, but does not provide a standard for 

air quality analogous to the EPA's proposed federal requirement that fugitive dust not 

WId .. citing US Census Bureau. Current Housing Reports. Series HI 50/09. American Housing Survey for the United 

States: 2009. U.S. Government Printing Office. Washington. DC: 20401. Printed in 2011 . 

61 The CRS Reports point repeatedly to the failure of the bill to define "structure" with sufficient specificity. See 

2013 CRS Report at 6. 

ti2 The bill's provision that purports to set a closure date for unlined ponds that cannot meet groundwater protection 

standards after 8 or )0 years has significant loopholes making it unlikely to result in closure of many polluting units. 

In addition, the provision applies only to unlined, operating surface Impoundments. 

"2012 CRS Report at 14. See a/so, 2013 CRS Report at 25. 

17 
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82182.054

exceed 35 ug/m3.64 The bill also fails to even include the federal minimum "cover 

material requirements" mandated at municipal solid waste landfills. 

Conclusion 

In summary, the Coal Ash Recycling and Oversight Act of 2013 cannot and will 

not adequately protect American communities from the toxic pollution from coal ash. Its 

"unique" approach fails to guarantee the safety and security of communities located near 

high hazard dams and fails to ensure the protection of our nation's drinking water, rivers 

and streams. After decades of dangerous disposal of billions of tons of coal ash. it is 

extremely disappointing that a bill without deadlines would receive serious consideration 

by this Congress. In light of the evidence of water supplies poisoned with cancer-causing 

chemicals, it is unconscionable to consider a bill that allows polluting dumps to continue 

to operate indefinitely. Lastly, in the wake of the largcst toxic waste spill in U.S. history, 

it is unfathomable to consider a legislative solution that fails to ensure the structural 

integrity of hundreds of dams impounding millions of tons of toxic sludge. The problems 

posed by coal ash can and must be solved, but the Coal Ash Recycling and Oversight Act 

of 2013 is not the answer. 

We remain open to further discussion of coal ash legislation with Members of the 

Subcommittee in the hope that we can arrive at a better understanding of our mutual 

concerns and establish common goals that benefit the health of all Americans, our 

environment and our economy. 

M See § 401 1 (c)(l)(D). 

18 
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82182.055

Figure 1: Human Health Effects of Coal Ash Pollutants 

Aluminum Lung disease, developmental problems 

Antimony Eye irritation, heart damage, lung problems 

Arsenic Multiple types of cancer, darkening of skin, hand warts 

Barium Gastrointestinal problems, muscle weakness, heart problems 

Beryllium Lung cancer, pneumonia, respiratory problems 

Boron Reproductive problems, gastrointestinal illness 

Cadmium Lung disease, kidney disease, cancer 

Chromium Cancer, ulcers and other stomach problems 

Chlorine Respiratory distress 

Cobalt Lunglheart/liver/kidney problems, dennatitis 

Lead Decreases in IQ, nervous system, developmental and behavioral 

problems 

Manganese Nervous system, muscle problems, mental problems 

Mercury Cognitive deficits, developmental delays, behavioral problems 

Molybdenum Mineral imbalance, anemia, developmental problems 

Nickel Cancer, lung problems, allergic reactions 

Selenium Birth defects, impaired bone growth in children 

Thallium Birth defects, nervous systemlreproductive problems 

Vanadium Birth defects, lung/throat/eye problems 

Zinc Gastrointestinal effects, reproductive problems 

Source: ATSDR ToxFAQs, available at www.atsdr.cdc.gov/toxfaq.html 

19 
134 

Mr. SHIMKUS. Thank you. 

The last testimony we will receive is from Mr. Spadaro, who is 

a mine safety and health environmental consultant. Mr. Spadaro, 

I understand you are going to show some slides in your testimony, 

is that correct? 

Mr. SPADARO. Yes, I am. 

Mr. SHIMKUS. We would just on the record, as we have submissions, you know, in a certain amount of time, when you have slides 

if we could see those in the same timely manner on the submission, 

that just makes it easier for us, too. So that is actually part of your 

testimony and we should have received that 48 hours in advance, 

too, but we are happy to, with asking for unanimous consent, to 

allow you to have the slides shown. So with that, I recognize you 

for 5 minutes. 

STATEMENT OF JACK SPADARO 

Mr. SPADARO. Thank you. I will try to show these as I go so we 

will save time. 

I just want to thank you for inviting me here today, and for allowing me to make these comments. I have been involved in the 

regulation of dams related to coal mine waste since 1972, when I 

went down to southern West Virginia as a young engineer to investigate the Buffalo Creek dam failure, where 125 people died and 

about 4,000 people ended up having their homes destroyed by the 

failure of a dam that had not been engineered properly. Then after 

that time, I have worked for really in the past 40 years in regulating both the environmental effects of mining, and the mine 

health and safety regulations at both the federal and state levels. 

The management and disposal of coal ash is an issue with serious health and safety implications that warrant federal action to 

protect the communities living with this waste, particularly to ensure the structural integrity of more than 1,000 coal ash dams 

across the country. 

In the draft discussion, there is just a mere mention, really, of 

the standards necessary to address these threats. The language is 

something vague, like good engineering practices. Well—and I am 

going to show here in a minute the after-effects of the dam failure 

at Buffalo Creek, and several others. 

So when I went to Buffalo Creek and spent almost a year there, 

I was there—I went in about a week after the dam failed and then 

I worked with a committee that was appointed by the governor of 

West Virginia and their very first conclusion read this way, ‘‘The 

lack of definitive, clear-cut, and enforceable laws with regard to the 

safety of mine refuse banks and impounding structures, both at the 

federal and state levels, was a major shortcoming that contributed 

to the disaster.’’ Now I want to show, if we can, the first photographs of the Buffalo Creek dam failure. 

[Slide shown.] 

This is how destructive one dam failure can be. In this failure, 

the structure was about 60 feet high, contained 125 million gallons 

of coal slurry, and it failed in a matter of 15 minutes because there 

were no engineering standards in place. 

So after that, I was honored to work with the—we can go on to 

the next slides. 

135 

[Slide shown.] 

I was honored to work both at the state and federal level in writing regulations that could govern these structures, and so we, over 

time, developed under the Code of Federal Regulations under the 

Surface Lining Act, under 30 C.F.R. 816.49, 816.81, 816.83, and 

816.84 standards that have been in place since 1977. That was for 

the Federal Office of Surface Mining, and states then implemented 

those regulations. We also have, since 1977, federal standards that 

are enforced by the Mine Safety and Health Administration, and 

that is under 30 C.F.R. 77.214 through 77.216. 

Unlike the discussion draft, the OSM and MSHA regulations require specific recognized engineering standards to be applied to the 

planning, construction, and maintenance of coal refuse dams and 

do not merely leave the design and maintenance criteria to an 

independent contractor. 

[Slide shown.] 

The failure that you see now on the screen was the Martin County dam failure that occurred in October, 2000. That was a failure 

where a dam had been repeatedly certified by an engineer who was 

a contract engineer for the company who owned the dam, and then 

there is a similar failure that occurred as recently as past December, 2012. The engineer who had repeatedly certified that dam was 

safe was standing on top of the dam when it failed. 

So the EPA’s studies have shown that there are—the structures 

study, there are at least 25 percent of them were in poor conditions. They did recommend urgent action to stabilize those dams. 

Fifty-four of the significant hazard dams were rated poor, and less 

than half of all the dams received a satisfactory rating. 

I want to say to you, I have seen, as you have seen here, the result of inadequate and irresponsible regulation of coal refuse dams, 

and these catastrophes that I hope never to see again, and I shall 

never forget the bodies of the people that I saw wrapped in the coal 

slurry in the weeks following the Buffalo Creek dam failure, and 

hearing the voices of the survivors who had lost their families forever. 

Thank you. 

[The prepared statement of Mr. Spadaro follows:] 

136 


82182.056

Statement of Jack Spadaro 

Former Director of the National Mine Health and Safety Academy 

Regarding Coal Ash Dam Safety 

Committee on Energy & Commerce, Subcommittee on Environment & Economy 

April 11, 2013 

In February 19721 witnessed firsthand the complete and utter destruction of seventeen (17) 

mining communities on Buffalo Creek in Logan County, W. Va. I was sent as part of the Commission 

appointed by the Governor of West Virginia to investigate the causes of the failure of a coal waste dam 

at the headwaters of Buffalo Creek on February 26,1972. The dam failure resulted in the release of a 

massive wall of toxic coal mine waste water that killed one hundred twenty-five (125) men, women and 

children who were residents of the Buffalo Creek Valley. More than fifteen hundred (1500) homes were 

destroyed or severely damaged and four thousand (4000) people were left homeless. The Governor's 

Commission of Inquiry concluded: 

"1. The lack af definitive. dear-cut. and enforceable lows with regard to the safety of minerefuse bonks and impounding structures, both at the Federal and State levels. was a major 

shortcoming that contributed to the disaster. " 

I have been involved in the evaluation and regulation of coal waste dams since 1972 and I have 

written federal and state regulations governing the structural integrity of such dams. The regulations I 

wrote in 1978 for the federal Office of Surface Mining (OSM) Reclamation and Enforcement are still in 

effect. The regulations under 30 CFR 816.49,816.81,816.83, and 816.84 have in large part been 

complied with when adequately enforced by state and federal regulating authorities. The exceptions 

were the failures of the Martin County Coal Waste Dam in Martin County, KY, on October 11, 2000 and 

the failure ofthe Robinson Run Coal Waste Dam operated by Consolidation Coal Company in Harrison 

County, W.Va. in December 2012. I will speak more about these coal waste dam failures in this 

discussion. Comparable regulations regarding coal waste dams are also enforced by the federal Mine 

Safety and Health Administration (MSHA) under 30 CFR 77.214 through 77.216. Both the OSM and 

MSHA regulations require at a minimum that the coal waste embankments and dams be constructed in 

compacted layers and meet stringent geotechnical engineering requirements ensuring a long time 

minimum factor of safety of 1.S. The OSM and MSHA regulations further require that the plans for the 

construction and maintenance of coal waste dams be approved by the MSHA District Manager and 

Technical Support Division and, in the case of OSM, by the designated regulatory authority. Safety 

examinations of the coal waste dams by a qualified dam safety expert are required on a weekly basis 

under the MSHA rules. The OSM and MSHA regulations require specific recognized engineering 

standards be applied to the planning, construction and maintenance of coal refuse dams and do not 

merely leave the design and maintenance criteria to an independent engineer as has been proposed in 

recent discussion papers. There is an inherent and profoundly dangerous risk in leaving the entire 

structural integrity question up to an engineer employed by the owner or a contract engineer engaged 

by the owner of the coal ash containment dam. This risk was clearly evidenced in October 2000 in 
137 


82182.057

Martin County Kentucky when a coal slurry impoundment failed unleashing three hundred million 

(300,000,000) gallons of toxic coal mine preparation plant waste into the Tug Fork and Big Sandy Rivers 

killing all life forms for one hundred (100) miles downstream. The coal slurry impoundment had been 

certified as safe on an annual basis by a so called "independent" certified professional engineer who was 

employed by the mining company under contract for at least six (6) years prior to the failure. The same 

"independent" engineering firm had regularly inspected the Martin County Coal slurry impoundment on 

a quarterly basis and certified that the dam was safe. Later investigation by MSHA engineers found that 

the mining company had lied in its application for approval regarding the foundation conditions at the 

bottom of coal slurry reservoir. A similar coal waste dam failure occurred in December 2012 at Robinson 

Run in Harrison County, W.Va. The coal slurry reservoir was being utilized as a disposal area for coal ash 

generated by a nearby power plant. The exact type of structure we are discussing today. The dam failed 

while the engineer who had repeatedly certified that the dam was safe was standing on the crest of the 

dam. A bulldozer operator assisting the engineer was drawn into the coal ash reservoir with his dozer 

and drowned. It took over a week to recover the man's body. This is only one tragic example of what will 

assuredly happen if coal ash dams are not rigorously regulated by independent government agencies 

with adequate authority to monitor engineering and construction of coal ash dams. 

I am certain that the proposed legislation in its present form, without specific requirements for 

review of design, stringent geotechnical and hydrological engineering requirements, and vigorous 

enforcement by a federal regulatory agency will result in a catastrophic failure of a coal ash dam 

containment structure that will result in extensive loss of life and severe environmental damage that will 

be irreversible. There are thousands of such structures in the United States at this time and the failure 

of one or more of these dams is assured unless strict engineering standards are imposed. These 

standards are not costly and in fact can result in economic savings to the industry by reducing liability 

and streamlining construction and maintenance costs. This has been found true in the mining industry 

since 1977. If we do not ensure long term structural integrity, the result has already been observed in 

the massive failure in Kingston, Tennessee. The EPA completed a study of the structural integrity of over 

400 coal ash dams, hundreds of which could cause loss of life or serious damage if a failure occurs. The 

EPA found that approximately twenty five percent (2S%) were in "poor" condition. The EPA has sent 

letters to the owners of the dams requesting that the deficiencies be remedied, but there is no law or 

regulation that requires the owners to do so. I find this appalling forty years after the Buffalo Creek coal 

refuse dam failure. The people of Buffalo Creek warned their governor and at least six federal and state 

agencies that an unsafe dam existed at the headwaters of the stream that flowed by their homes. They 

were ignored. Surely, those of you who now have knowledge that these dangers exist in the year 2013 

will not do the same. 

I hope never again to see the result of inadequate and irresponsible regulation of a coal waste 

retaining structure as I did in 1972 on Buffalo Creek. I shall never forget the bodies wrapped in black 

toxic sludge or the faces and voices of the survivors who had lost all that was precious to them, forever. 

Jack Spadaro 

April 11, 2013 
138 

Mr. SHIMKUS. Thank you, sir, for your testimony. 

I am going to ask unanimous consent that Mr. Hall be recognized 

for the first 5 minutes. 

Mr. HALL. Thank you, Mr. Chairman. 

Mr. SHIMKUS. Without objection, the gentleman is recognized. 

Mr. HALL. Thank you very much, and it is very important to 

take—I thank you for it. It is—you make your usual request that 

we can submit letters in the future? 

Mr. SHIMKUS. I have not made that statement yet, but without— 

with unanimous consent, people are—we will keep the record open 

for 5 days to receive questions and responses as per—10 days? Ten 

days. Without objection, so ordered. 

Mr. HALL. Thank you. I yield back. 

Mr. SHIMKUS. Shoot, I could have done that, Ralph. 

Now I would like to recognize Mr. Tonko for 5 minutes. 

Mr. TONKO. Thank you, Mr. Chair, and let me thank the witnesses for their testimony. 

The proposal before us would establish an unprecedented regulatory structure wherein the specific technical requirements for 

coal ash disposal would be set in statute. I have serious concerns 

about that approach, not the least of which is the burden it puts 

on this committee to determine the appropriate technical specs for 

safe disposal. 

In order to better inform the subcommittee, I would now like to 

ask some of the same questions of this panel. Mr. Spadaro, you are 

an engineer with very compelling evidence that you offered with 

the photos that you have displayed. Your experience in determining 

what criteria are necessary to assure the structural integrity of 

waste impoundments is telling, I am concerned that this proposal 

will not require impoundments to be designed for the full volume 

of liquid they will hold, and will not require the operating criteria 

currently applied to coal waste impoundments. So are those concerns justified? 

Mr. SPADARO. Yes, sir. 

Mr. TONKO. And do you agree that the proposal before us is deficient on structural integrity? 

Mr. SPADARO. Yes, it is remarkably deficient. I can’t believe that 

40 years after the Buffalo Creek dam I am reading legislation that 

basically foregoes standard geotechnical practice that has been applied to dam construction for the past, really, 50 years. And so this 

bill is deficient in applying those standards. 

Mr. TONKO. Now you have shared some very telling photos, but 

can you give a few brief examples of those deficiencies? 

Mr. SPADARO. Yes. As I said, the rate—both the Surface Mining 

Control and Reclamation Act, and the Mine Safety and Health Act 

of 1977 were very specific in stating that standards should be established in the federal regulations through the regulation process, 

so I, as I said, I worked on the team of engineers and hydrologists 

who put together those regulations. We had input from the Corps 

of Engineers, the Soil Conservation Service, the engineers from 

within the specific agencies, and those people had the knowledge 

to determine what needed to be put into the regulations. 

One of the main things is the requirements for foundation investigation, engineering analysis of the foundationaries of dams, engiVerDate Nov 24 2008 15:21 Sep 17, 2013 Jkt 037690 PO 00000 Frm 00144 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 113\113-29 CHRIS
139 

neering analysis of the seepage patterns that the dams might create, and the geologic conditions in the areas where the dams are 

being constructed. Also, standards for compaction of the material, 

and daily inspection standards under the MSHA standards, and 

quarterly inspections by federal inspectors, as well as the certification by the corporate engineer. So you have a checks and balance 

system where not just one person is saying the dam is safe. And 

that has worked by and large very successfully. There are 650 coal 

refuse dams in the United States. We know of several failures, but 

I can assure you, without these standards, there would have been 

many more. 

Mr. TONKO. Well, I think this is something that could be addressed by delegating rulemaking authority to the EPA to establish 

criteria that would meet a standard of protection, and rather than 

rescuing EPA as an agency, as has been suggested, it seems as 

though the concern should be with individuals, families, and communities that could be severely impacted. 

Mr. Spadaro, if we had to lay it out in statutory terms, what are 

the minimum requirements in your view that should be included 

here to prevent another spill like that which happened in Kingston? 

Mr. SPADARO. Well, I do recommend that the regulations be developed by EPA, and not just EPA, but a team of agencies with the 

expertise, as well as with input from industry. So I think the minimum standard would be that the dams be built using initially, and 

requiring initially, an evaluation of the stability of the foundation, 

the stability of the dam as it is being constructed, instrumentation 

of the dam with pisometers and slope inclinometers that can detect 

movement, minimum standards for compaction material, and minimum hydrologic standards, for instance, establishing design 

storms. We found in West Virginia we had to design many of the 

dams for the probable hydrologic consequences, the probable maximum storm, because there were large populated areas downstream. So you have to account for very large storms, as well as 

the structural integrity of the dams. Those things, at a minimum, 

should be included in any proposed regulations or legislation. 

Mr. TONKO. Thank you, Mr. Spadaro. Thank you, Mr. Chair. I 

yield back. 

Mr. SHIMKUS. Gentleman yields back his time. 

Mr. Spadaro, not a question, but a comment. I was 12 in 1972, 

and I would hope engineering qualifications and standards have 

improved so much in the multiple decades, and that is why we 

trust the states to be able to figure that out. The other issue was, 

you are talking about a coal waste dam. We are talking about coal 

ash impoundments. They are two different issues, and I just want 

to put that on the record. 

I want to start with Mr. Martineau. ECOS is who? 

Mr. MARTINEAU. ECOS is the Environmental Council of State. 

We are essentially an organization of all my counterpart agencies. 

I am the commissioner of the Department of Environment and 

Conservation for Tennessee. The titles vary slightly, but we have 

48 of the 50 States are members—— 

Mr. SHIMKUS. And the two who aren’t, was I correct, Florida and 

South Dakota? 

140 

Mr. MARTINEAU. Florida and South Dakota. 

Mr. SHIMKUS. So New York and Massachusetts—— 

Mr. MARTINEAU. Are all members. 

Mr. SHIMKUS. —California, and they all went on record with this 

resolution twice, is that correct? 

Mr. MARTINEAU. Yes. 

Mr. SHIMKUS. Without objection? 

Mr. MARTINEAU. I believe it was unanimous. Yes, it was unanimous. 

Mr. SHIMKUS. Unanimous? California, Massachusetts, which I 

think is telling, and I think that is the importance of your organization, and I just wanted to make sure we have that on record. 

The other thing—and I am—what is important, part of this 

whole debate came about because of this, beneficial reuse. And in 

the state of California, there were adds about concrete use that had 

fly ash, and they were targeting that reuse, and the whole reclassification. And for my colleagues, some of whom are new on this subcommittee, the importance is if we then turn this all into a toxic 

waste dump, you have got—and Mr. Cobb, I think your testimony 

talks about where do we put it and how do you manage it? So I 

just want to tie that into this debate, because we are now getting 

into the nitty gritty, but there are some macro parts of this debate, 

and that is why many of us think this is a great, actually, environmental response to get beneficial reuse and ensure that that occurs, which keeps our ability to place things in landfills in a limited amount. 

Mr. Martineau, as an experience state regulator, do you think 

states are able to interpret the minimum program requirements in 

the bill to provide a permit program that is protective of human 

health and the environment? 

Mr. MARTINEAU. Yes, I do. 

Mr. SHIMKUS. What about this dam debate that we just had? 

Mr. MARTINEAU. I think dams are obviously in context well beyond coal ash disposal sites, but the structural integrity of dams, 

I am not a dam expert—d-a-m—but those things are evaluated by 

states. I mean, EPA you heard earlier, they themselves went and 

looked at the 300 coal ash disposal sites and saw no immediate 

hazard, so I think—— 

Mr. SHIMKUS. No immediate hazard, and the EPA went on record 

as saying that? 

Mr. MARTINEAU. Yes, I believe that was—— 

Mr. SHIMKUS. That was the testimony, yes, sir. 

Mr. Cobb, as an experienced—I mean, back to you, Mr. 

Martineau. The draft legislation sets forth detailed federal requirements that would establish a baseline for coal ash management 

across the country. Do you believe the requirements set forth in the 

legislation will ensure that states develop effective environmental 

protective permit programs for coal ash management? 

Mr. MARTINEAU. Yes, I believe they do. I think the discussion 

draft, the Senate version from last year covers the key elements of 

program for groundwater protection, for closure requirements, for 

structural integrity, and other requirements. And the thing it adds, 

which the Subtitle D program does not have, is that permitting 

141 

program, and then it provides that states have to certify the completion of those requirements to EPA, and they can evaluate those. 

Mr. SHIMKUS. Thank you, and Mr. Cobb, I wanted to ask, as another experienced state regulator, do you think states are able to 

interpret the minimum program requirements in the bill to develop 

a permit program that is protective of human health and the environment? 

Mr. COBB. Absolutely, Mr. Chairman. Quite frankly, that is what 

we do. We implement regulatory programs. We interpret—— 

Mr. SHIMKUS. You mean, you can do it without the EPA coming 

in? 

Mr. COBB. I have confidence that we can, yes. 

Mr. SHIMKUS. You are not so diligent—I mean, you are concerned 

about your state’s citizens, and that is the job that you have, is 

that correct? 

Mr. COBB. That is correct, because in addition to having the job 

of protecting human health and the environment, we also have the 

added incentive that we and or families and our friends live in 

these communities, so we have a vested interest. 

Mr. SHIMKUS. And if there is, obviously, abuse, which I think 

some people fear, don’t you think that the public would be aghast 

and may want to take retribution on politicians and those who 

have been appointed as commissioners of the environmental activities and throw them out of office? That is a political question. The 

answer is I would hope that response would be much better and 

the public would be outraged. 

Ms. Bodine, when you were at the EPA, what was the prevailing 

view about coal ash regulation? 

Ms. BODINE. As I talked about in my testimony, EPA didn’t stop 

looking at coal ash with the 2000 regulatory determination, because, in fact, the determination said that Subtitle D regulations 

were warranted. But as I pointed out in my written and in my oral 

statement, the agency didn’t have a risk assessment to support regulation. So the agency—we continued to work on the risk assessment and we continue to gather information, and did a report, an 

updated report on practices in the industry with Department of Energy, and also received a petition from environmental groups, received a voluntary plan from the industry. And we had a lot of information and so we put out a notice of date availability in 2007 

to make sure that the public and everyone knew what information 

the agency had. 

In preparing to release that, the staff briefed me on all the information that we had and that the agency had, and recommending 

that it all be put into the public record, which is what we did. But 

in that briefing, the consensus of the staff was that certainly not 

Subtitle C regulation was warranted, and the question being raised 

was given, you know, the information that was being developed, 

whether even Subtitle D regulation was warranted. 

Mr. SHIMKUS. Great, thank you. 

Now I am going to get this correct. I would like to recognize the 

new vice chairman sitting in, Mr. Green, for 5 minutes. 

Mr. GREEN. Thank you, Mr. Chairman. I am not vice chairman, 

in fact, this year—well, I am now because for the first time I can 

run the Democratic side. But last year I was ranking member on 

142 

the subcommittee and learned much more about coal ash than I 

ever thought I would ever know. One of the—we drafted a similar 

bill that—and we got bipartisan support out of the House for—that 

said something similar to what this bill does, and I am hoping to 

be able to support it again, but I have some questions of each of 

you. 

For our state regulators, Mr. Cobb and Mr. Martineau, given 

your position, what do you think would be the consequences of having CCR program run through the EPA instead of the state-led program designed in the Majority discussion draft? 

Mr. MARTINEAU. Well one, I think as Ms. Bodine has said, EPA 

has grappled with this for 30 years and not come up with any solution, and they are still grappling with it. They don’t know if it belongs in Subtitle D. If it is a Subtitle C regulation, that would be 

a disaster. We will have chaos. We think the appropriate mechanism is, as the statute sets up for, that the states control, much 

like they do regulating landfills under Subtitle D. And the thing 

about the legislation is, we can move forward once it is passed, just 

begin that implementation at the state level. 

Mr. GREEN. Mr. Cobb? 

Mr. COBB. Yes, and I would agree with Mr. Martineau’s assessment there that one of the key differences is with the legislation, 

it addresses the policy issues, the other issues that have balled this 

whole issue up for 30 years. It charges the states with going forward with implementing a program, based on experience programs, 

so we get it implemented faster, we get the protections in place 

faster. It was mentioned earlier that it has been almost 5 years 

since Kingston. We still don’t have a program in place. 

Mr. GREEN. Yes. I think, you know, one of my concerns is that— 

and again, I realize we had testimony last Congress that, for example, Wisconsin recycles 97 percent of their coal ash, and now-Senator Tammy Baldwin actually supported the bill in the subcommittee and the full committee and on the floor because of that, 

but we know we have some problems with coal ash. The issue of 

an old permit disposal in the Great Lakes I think needs to be dealt 

with, and the—but Mr. Martineau, one of the issues that brought 

coal ash up originally was the issue of the wet storage, and Tennessee had that disaster. Has there been anything Tennessee has 

done under current Tennessee law that would deal with the problems of the weak dams and so we wouldn’t see that? Now we don’t 

have that in Texas, but I know a lot of states still do have wet storage. 

Mr. MARTINEAU. Well yes, and I think first to put it in context, 

that surface impoundment that was the main part of the issue at 

Kingston, you know, had been storing coal ash since the 1950s, so 

you know, there were no regulations, federal, state, local, any of 

those environmental statutes across the board, so there was a landfill. And we have gone back, obviously, after Kingston, and that 

was before my term as commissioner, but the regulations were upgraded after that to basically design would require new landfills to 

meet basically the Class II industrial landfill sites, which require— 

collection, closure—cap closure like a traditional landfill. So yes, we 

definitely have upgraded the requirements—— 

Mr. GREEN. So Tennessee has done that since that disaster? 

143 

Mr. MARTINEAU. Yes. 

Mr. GREEN. Were you able to deal with any of the previously impoundments? Do you have any authority to deal with, you know, 

a dam that may end up being weak and you get folks downstream 

to be concerned about it? Do you have the authority to be able to 

deal with that? 

Mr. MARTINEAU. Yes, we did, and we ordered TVA to do assessments of all the other coal ash disposal sites at their various power 

plants, and with EPA we looked at those and certainly would have 

the authority to upgrade those. And as you said, now going forward, for the landfill they basically have to meet the Class II industrial landfill closure standards. 

Mr. GREEN. Ms. Evans, I know you may have an opinion on that. 

You know, I would like to see—you know, coming from Texas it 

seems like it is in our blood that the states ought to deal with it, 

but if we are not dealing with it, then you know, it becomes a national issue and in this case, EPA I think has the authority, unless 

we set up a different structure, and that is what this legislation is 

about. What is your opinion? 

Ms. EVANS. Well, I think the states have the ability to deal with 

this, but they don’t always have the will. I think Tennessee and 

Alabama are lessons to us. Of course, we had the disaster in Tennessee in 2008, but following that, the Tennessee legislature did 

not change their statutes to address the structural stability of 

dams, and so it remains that structural stability requirements are 

not specifically applied to coal ash dams. And this is after the biggest toxic waste spill in the Nation. 

Also, I would like to correct the record regarding the inspection 

of dams, specifically in Tennessee with TVA. When TVA inspected 

its dams, it found that half of them required repairs to ensure 

structural stability, and those repairs are underway or completed 

now. As far as the EPA inspections, there were urgent repairs that 

were noted in the inspection records. And in West Virginia, the 

West Virginia DEP inspected one dam where it was deemed unsatisfactory and needed urgent repair. 

So the longer I sit next to Mr. Spadaro and hear him talk about 

his experience and what is needed, and knowing what is not out 

there regarding coal ash dams, it certainly scares me about what 

the states have not done. 

Lastly, in the case of Alabama, Alabama did—the legislature did 

address coal ash in 2011; however, they did not institute any regulations for coal ash ponds. Most of the waste in Alabama, I believe, 

is disposed in coal ash ponds, not landfills. Alabama legislature 

made their landfill regulations stronger. They did not change regulations applicable to dams. So what we have got here are states 

that are not ready to jump on this problem, solve the issue of disposal, and we may have a delay at EPA, but I am convinced that 

we are going to have a delay in state legislatures. And being from 

the very liberal State of Massachusetts, we can’t even get our gaps 

closed in the State of Massachusetts, which we have been trying 

literally for 10 years with the bill and the legislature. 

Mr. GREEN. I have to talk to our colleague, Mr. Markey, about 

that. 

Mr. SHIMKUS. That is right. 

144 

Mr. GREEN. Thank you. 

Mr. SHIMKUS. And I would just note, Massachusetts is a member 

of ECOS. I would like to recognize Mr. Latta for 5 minutes. 

Mr. LATTA. Thank you very much, Mr. Chairman, and again, 

thanks to our panel for coming in today. We appreciate your testimony. 

If I could start with Ms. Bodine. Could I ask this question first? 

In your experience, what constitutes a standard of protection? 

Ms. BODINE. Thank you. This is a question that has been raised 

by CRS in the evaluation of legislation, and the CRS analyst appears to be saying that the only standard of protection that Congress can put forth is something like protection of human health 

and the environment. And that is simply not accurate. Congress 

can establish performance standards that are, in fact, standards of 

protection. And I also have to note that while many of the earliest 

environmental statutes did say to EPA go and protect human 

health and the environment, Congress hasn’t passed legislation 

that is that open-ended in a very long time. And that spurs concerns on both sides of the issue. You have had people worried that 

the agency would go too far in that, and then people worry that the 

agency—giving the agency discretion to decide what is protecting 

human health and the environment, that they wouldn’t go far 

enough. And so you have seen statutes that have prescriptive language, prescriptive standards. I would just point out the hazardous 

and solid waste amendments of 1984, Congress, at that time, decided they didn’t like what the agency was doing to protect human 

health and the environment from hazardous wastes, and put in, 

you know, very prescriptive technical requirements into the statute. 

So yes, you can have technical criteria that are performance criteria, and that is a standard of protection. And that is in the draft 

legislation. 

Mr. LATTA. Let me follow up with that. Do states also establish 

standard of protections for statutes, regulations, and programs that 

they implement? 

Ms. BODINE. So the answer to that is, of course, yes. I could defer 

to my state colleagues here, but I would just point out that they 

have been doing this for years. The states regulate far more than 

the Federal Government regulates. They have state solid waste 

management programs, beneficial use programs. They regulate 

more waste as hazardous than the Federal Government has, and 

of course, there is also regulation of coal ash. So in many areas, 

in many programs, states are establishing and implementing their 

own protective standards. 

Mr. LATTA. Thank you. 

Mr. Martineau, let me ask this question. Mr. Stanislaus stated 

in his written testimony the timelines for development and implementation of state programs are necessary. Would the states be 

open to a reasonable implementation schedule? 

Mr. MARTINEAU. Yes, I think that certainly makes sense to provide time for the states to pass legislation, adopt rules, whatever 

they need at the state level to get that permit program up and running or anything like that would make sense, and then the statute 

already had certain timelines in there for when you do the groundVerDate Nov 24 2008 15:21 Sep 17, 2013 Jkt 037690 PO 00000 Frm 00150 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 113\113-29 CHRIS
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water monitoring requirements or when the thing has to be upgraded by a certain date or closed by a certain date. So those kinds 

of schedules all make sense. 

Mr. LATTA. Thank you. 

Mr. Cobb, same question. 

Mr. COBB. Yes, I believe that we would be very amenable to that 

kind of thing, particularly for the operational requirements which 

can be implemented almost immediately or on an accelerated 

schedule and get the protections in place earlier. The more designrelated considerations, in my opinion, would need to wait on the 

permits because that is changing the very fabric of how the units 

are built, and we need to make sure those standards are right before a facility begins constructing, so that they construct it properly. 

Mr. LATTA. Let me ask a follow-up on that then. What would, 

you know, a timeframe could the states live with if there were a 

deadline for issuance of permits? Mr. Cobb? 

Mr. COBB. Based on our evaluation of the universe that we have 

in Alabama where we know we have at least nine large facilities 

that will require permitting, looking at our current workloads and 

everything, we believe that 3 to 4 years after applications are submitted we will be able to have all of our permits in place. 

Mr. LATTA. And Mr. Martineau, can I ask you the same question? 

Mr. MARTINEAU. Yes, and I certainly can’t speak for all the 

states on that, but I would think 2 years to set up the permit program, adopt any state rules that are needed through the state rulemaking process or legislative approvals, and then some period of 

time, 2 to 4 years, to get the permits in place probably makes 

sense, would be about right. 

Mr. LATTA. Thank you. 

Mr. Chairman, I yield back the balance of my time. 

Mr. SHIMKUS. Gentleman yields back his time. 

Chair now recognizes the gentleman from West Virginia, Mr. 

McKinley, for 5 minutes. 

Mr. MCKINLEY. Thank you, Mr. Chairman. I have a whole host 

of questions here, but I think if we can focus in on Mr. Spadaro, 

please, if we could. I wonder if I didn’t—maybe because of my hearing problem, maybe you misspoke or I misheard, because in your 

opening statement you made something about challenging the 

structural integrity, you thought that it was only to meet good community standards. Do you remember saying that? 

Mr. SPADARO. I think—can you hear me now? 

Mr. MCKINLEY. Yes. 

Mr. SPADARO. In the—— 

Mr. MCKINLEY. Is that a yes or a no? Did you say—I think you 

said good community standards. 

Mr. SPADARO. I said good engineering standards. 

Mr. MCKINLEY. Yes, good engineering standards, and that is fairly typical with the industry. If you are—you understand that, I 

mean, that people use good engineering practices because it falls 

under—but let me go back to more—you are a licensed engineer? 

Mr. SPADARO. No, I worked at the Federal Government for 30 

years, but I ran the Dam Control Division—— 

146 

Mr. MCKINLEY. That is oK, so you are not a licensed engineer. 

A couple things in your testimony that—in your written testimony 

I found curious. You made a couple statements, and just for the 

record, I would like to make sure that they are correct, because you 

are testifying before Congress. You said that the Robinson Run 

mine was utilized as a disposal for coal ash. You know that is 

false? 

Mr. SPADARO. No, that is not false. There are—I am sorry, sir. 

It was used for disposal from both the power plant and the coal 

preparation—— 

Mr. MCKINLEY. For slurry. Not coal ash, slurry. 

Mr. SPADARO. For slurry, and that is coal ash that is delivered 

to the reservoir on the form of slurry, sir. 

Mr. MCKINLEY. I hope that you will be—apparently you will be 

under oath when—— 

Mr. SPADARO. Yes, I am under oath, and I understand that it 

was delivered in the form of slur. 

Mr. MCKINLEY. They are not—it was not used for coal ash. 

Secondly—— 

Mr. SPADARO. I am sorry, but it was a coal ash—— 

Mr. SHIMKUS. Would the gentleman suspend? The time is the 

gentleman from West Virginia. 

Mr. MCKINLEY. You also said that—by implying, you said that 

25 percent of the dams were in poor condition, but the reality in 

conversation with EPA that the EPA said that just because they 

are classified as poor does not mean that they are unsafe. It just 

means that they are not meeting certain guidelines in terms of 

studies of paper evaluation. So let’s just make sure we understand, 

the 25 percent that are labeled as poor are not unsafe, they just 

have not met all the criteria. 

Mr. SPADARO. I disagree with that statement. 

Mr. MCKINLEY. Well, you can, and you are disagreeing with the 

EPA then. 

Mr. SPADARO. Yes. 

Mr. MCKINLEY. So also in regards to—you are aware that the 

Federal Government inspects dams. If they have any concern, they 

inspect them every 7 days, according to the federal regulations. Are 

you aware of that? 

Mr. SPADARO. They are required—the dams are required to be inspected by the mine operator every 7 days. 

Mr. MCKINLEY. And the—in West Virginia, you have all our coal 

impoundments, they fall under the Office of Surface Mining, 

MSHA, that you were involved with, and also the state DEP have 

inspections. It is done monthly, those inspections, so I do appreciate the fact that you were involved once as an engineer. I think 

you are out of touch—— 

Mr. SPADARO. No, sir, I have been regulating dams my whole career, and when I worked with the Office of Surface Mining, I wrote 

the federal regulations that are in this book. I wrote them in 1978. 

They are still in effect, and I have been enforcing those regulations—— 

Mr. MCKINLEY. You list yourself, sir, as—on your resume as the 

Engineer of the Year in 1993. 

147 

Mr. SPADARO. I was by the National Society of Professional Engineers. 

Mr. MCKINLEY. We talked to them today and they said they have 

no record of that. 

Mr. SPADARO. Well I am sorry, but I did receive it and I have 

the certificate to prove it. 

Mr. MCKINLEY. If you could, I would like to see that if you could 

submit that for the record, because in 1993, there is no such thing, 

first, as the Engineer of the Year. 

Mr. SPADARO. I was with the Federal Government—— 

Mr. MCKINLEY. Federal engineer, but that wasn’t awarded to you 

unless you were the engineer—were you in the Air Force at the 

time? 

Mr. SPADARO. No, I was working—— 

Mr. MCKINLEY. Because that is where it went in 1993. The Federal Engineer of the Year was an engineer in the Air Force, so—— 

Mr. SPADARO. Listen. I was awarded that award as an employee 

of the Federal Department of the Interior in 1993 by the National 

Society of Professional Engineers, and there was an award ceremony, sir. 

Mr. MCKINLEY. If you would send that certificate in, I would like 

to see that and share it with the NSPE, because they have no 

record of you. You are not licensed in West Virginia, you are not 

licensed in Kentucky, but you are acting as though you are an engineer. 

Mr. SPADARO. I have been qualified as an expert on dam safety 

in six federal courts in the past 30 years, and I am qualified every 

day in federal and state courts as an expert in dam—— 

Mr. MCKINLEY. I think the record shows that you are not a licensed engineer, and secondly, I agree with everything that has 

been said about the concern about the dam safety, and I think people have moved—what you discovered in ’72 or ’75, that is yesterday. 

Mr. SPADARO. I investigated—— 

Mr. MCKINLEY. Actually moving in a way that we go ahead, and 

I am really glad to hear that there are other people—that we are 

moving on it, that there have been improvements with those standards and we can continue to do that. But some of the record that 

you are testifying to, that you are representing, is just factually incorrect. 

Mr. SPADARO. That is not true. Everything I have said in my testimony is factually correct, and I have done dam safety investigations as recently as last year. 

Mr. MCKINLEY. I look forward to your testimony on the Robinson 

Run when they determine that it did not include fly ash. 

Apparently my time has run out, so I have to end at that. I yield 

back my time. 

Mr. SHIMKUS. Gentleman’s time is expired. 

Chair now recognizes the gentleman from Mississippi, Mr. Harper, for 5 minutes. 

Mr. HARPER. Thank you, Mr. Chairman, and thank each of you 

for being here and sharing your views on this very important issue 

to us, and if I may, is it Ms. Bodine or Bodine? 

Ms. BODINE. Bodine, thank you. 

148 

Mr. HARPER. Bodine, thank you very much. Ms. Bodine, would 

you consider authority in the legislation for EPA to analyze at any 

time state permit programs and find programs deficient if they do 

not meet the minimum requirements of the federal backstop? 

Ms. BODINE. Yes, I would consider that to be backstop authority. 

The way the proposed legislation, the draft legislation works is that 

EPA has the authority to evaluate the state programs and then if 

they are deficient, has the authority to then implement a federal 

permitting program in lieu of the state program, and that is a 

backstop. 

Mr. HARPER. OK. The legislation sets out a detailed list of criteria that states must include in their permit programs. Is this approach completely unprecedented, or when has it been done before? 

Ms. BODINE. So—and I talked a little about this earlier. The fact 

that Congress can set up in federal law specific criteria is not unprecedented, and again, has been done with very detailed statutory 

language in the hazardous waste context where Congress was setting out minimum technology requirements, indeed specifying the 

number of liners, for example, that would be—and that is all in 

federal statute, so the fact that you would have federal criteria established in federal law is not unprecedented. 

Mr. HARPER. OK, thank you. 

Mr. Cobb, how long have you been regulating solid and hazardous waste? 

Mr. COBB. For 25 years. 

Mr. HARPER. Based on that experience, those 25 years, does the 

legislation contain all of the necessary technical elements needed 

to establish a protective permit program? 

Mr. COBB. Yes, sir, I believe it does because based on my experience both in hazardous waste and in solid waste, primarily in hazardous waste, going through the legislation, it appears to contain 

the things that we would need to be able to have a protective regulatory program. 

Mr. HARPER. OK. Do you believe that the legislation allows 

states the latitude to go beyond the federal standards? 

Mr. COBB. Absolutely. As I read the legislation, there is clearly 

the provision that allows states to go beyond the minimum national 

requirements. 

Mr. HARPER. Now, would the legislation result in states developing or revising requirements for CCR management that would go 

beyond current waste management requirements? 

Mr. COBB. Well, I can only speak for Alabama, but certainly, because as has been pointed out, we have only recently been able to 

regulate CCRs, so what we will be putting in place as a result of 

this legislation or EPA rules or whatever comes out, will certainly 

go far beyond what we have done in the past, and I would be very 

surprised, based on my experience in discussions with other states, 

if there would be any state that would not have to do some expansion of their programs beyond the current status. 

Mr. HARPER. And I think you have answered it, but just so that 

I am sure, so would Alabama have to develop new requirements or 

make changes to existing requirements that may apply to coal ash? 

Mr. COBB. Yes, sir. We have already incorporated coal ash into 

our landfill program, but we will have to add requirements, parVerDate Nov 24 2008 15:21 Sep 17, 2013 Jkt 037690 PO 00000 Frm 00154 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 113\113-29 CHRIS
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ticularly for surface impoundments, for structural integrity, for any 

other units, and that is what we are ready to do. We are waiting 

on to see what the national requirement is to know how to put 

those in place so that we can do it, and we are ready to do it now. 

Mr. HARPER. I yield back. 

Mr. SHIMKUS. Gentleman yields back his time. Chair now recognizes the gentleman from Florida, Mr. Bilirakis, for 5 minutes. 

Mr. BILIRAKIS. Thank you, Mr. Chairman. I appreciate it. 

Mr. Cobb, a criticism of the legislation is that the flexibility in 

the bill would allow states to define what constitutes CCR landfill, 

surface impoundment, or other land-based unit to define what specific CCR structures state program conditions would be applied to. 

Why is it a good approach? 

Mr. COBB. Sir, I believe that this is a good approach because it 

allows states the flexibility to tailor the regulations to what exists 

in their state. It allows us to make sure that the regulations are 

better responsive to individual state conditions, to state geology, to 

state climate in a way that often cannot be done with strictly rigid, 

uniform national requirements. It goes to the part of states being 

more stringent, of states having additional requirements. We need 

that ability to tailor the regs to make sure we can address what 

is in our state. 

Mr. BILIRAKIS. Thank you. 

Ms. Bodine suggests that these terms are well understood as the 

RCRA regulation content. Do you agree? 

Mr. COBB. Yes, I would definitely agree with that. The terms 

such as landfill surface impoundment, land disposal unit, are used 

in all of the waste programs and regulations, and one of the things 

that you can take comfort in is we are regulators. As regulators, 

we like to have consistent definitions. We like to have consistency, 

because it enables us to regulate better and more consistently 

across programs. So yes, I believe that these terms are well understood and will be well represented. 

Mr. BILIRAKIS. Thank you very much. 

Ms. Bodine, based on your experience, would the approach set 

out in the discussion be successful at creating state permit programs that protect human health and the environment? 

Ms. BODINE. I believe so, yes. 

Mr. BILIRAKIS. Do you want to elaborate a little bit on it? 

Ms. BODINE. I think that this may be the only way that we are 

going to get, you know, standards for coal ash across the country 

is through legislation, and that this is the—not only will it be successful, it may be the only avenue for success, and that goes back 

to my earlier discussion about the fact that EPA has not been able 

to create the record and have a risk assessment that justifies regulation, and so Congress can step in and say as a matter of policy 

and as a matter of congressional prerogatives, that they are going 

to set up a federal program. The legislation does that. We have 

heard from the state regulators saying yes, it has all the elements. 

Yes, we can implement it. And so now it is just a matter of getting 

it done, of having Congress act. 

Mr. BILIRAKIS. Very good. Thank you very much. 

I yield back, Mr. Chairman. 

Mr. SHIMKUS. Gentleman yields back his time. 

150 

We want to thank this panel for coming and giving their testimony. I would like unanimous consent to submit three letters into 

the record—actually, four statements. Two letters from professional 

engineering firms regarding the appropriate dam safety standards 

for coal ash impoundments, one letter from a beneficial user, the 

Portland Cement Association, and a submission for testimony from 

the representative from North Dakota, Congressman Cramer. 

[The information apears at the conclusion of the hearing.] 

Mr. SHIMKUS. Without objection, so ordered, and the hearing is 

now adjourned. 

[Whereupon, at 12:58 p.m., the subcommittee was adjourned.] 

[Material submitted for inclusion in the record follows:] 

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WRITTEN TESTIMONY 

BY CONGRESSMAN KEVIN CRAMER, NORTH DAKOTA (AL) 

TO THE 

HOUSE COMMITTEE ON ENERGY AND COMMERCE 

SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY 

APRIL 11, 2013 

Chairman Upton, Ranking Member Waxman, Chairmen Shimkus and Gingrey, 

Ranking Member Tonko, and members of the Subcommittee, thank you for this 

opportunity to provide testimony regarding this very important topic. 

With our seven coal-fired electricity generation plants, the issue of disposal and 

beneficial use of coal combustion residuals (CCR) is imperative to my state's electricity 

ratepayers. North Dakota energy stakeholders have the capability to beneficially use 

40% of CCRs, utilizing its unique characteristics for such purposes as cement 

replacement, road base/sub-base applications, sand blasting media, roofing shingles, 

winter ice control on roads, as well as to offset such materials as sand and gravel in 

constructions projects. High profile projects, such as the 1-35 bridge reconstruction in 

Minneapolis and concrete footings for large wind farms, are just two examples of the 

benefits CCRs can play in rebuilding, and augmenting, our nation's infrastructure. 

For those residuals that are unable to be utilized, the remainder is disposed in a 

safe and prudent manner, now solely regulated by the North Dakota Department of 

Health (NDDOH), Department of Waste Management. NDDOH effectively works with 
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82182.102

the energy industry to investigate and solve disposal issues, as well as develop long-term 

solutions. 

The designation of CCRs as hazardous waste would not only result in significant 

cost ramifications to the already overburdened electricity consumer, but would promote a 

regulation in defiance of common sense, thereby undermining its credibility and overall 

effectiveness. 

Although the North Dakota Solid Waste Management Rules for coal combustion 

waste disposal follow the general model of the Resource Conservation Recovery Act 

Subtitle D criteria for municipal waste, the specific requirements are tailored for North 

Dakota's gcology and CCRs. All standards proposed by this legislation are exceeded by 

current coal ash regulation by the NDDOH. 

The Coal Ash Recycling and Oversight Act of2013, and its amendments to the 

Solid Waste Disposal Act, is a superior alternative to the Environmental Protection 

Agency's (EPA) recommendations. 

Attached for your consideration is House concurrent Resolution No. 3026 from the 

North Dakota Legislature, urging the EPA to refrain from enacting regulations that 

regulate coal combustion residuals as hazardous wastes and allowing the NDDOH to 

continue to regulate CCRs under its current regulatory structure. Also included is a 

pamphlet published by one of my state's energy stakeholders which explains the 

beneficial uses of CCRs. 
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Sixty-third Legislative Assembly of North Dakota 

In Regular Session Commencing Tuesday, January 8, 2013 

HOUSE CONCURRENT RESOLUnON NO. 3026 

(Representatives BeHer, Boe, Delmore, Delzer, Headland, Kreidt, Porter) 

(Senators Carlisle, Dotzenrod, Lyson, Unruh, Wardner) 

A concurrent resolution urging the Unned States Environmental Protection Agency to refrain from 

enacting regulations that place unreasonable economic burden on electric consumers living in 

the Northern Great Plains. 

WHEREAS, over the course of the 2011·13 interim the UnRed States Environmental Protection 

Agency considered whether to regulate coal combustion residuals as hazardous or nonhazardous 

wastes under the Resource Conservation and Recovery Act; and 

WHEREAS, the North Dakota Congressional Delegation in conjunction wRh members of other 

delegations across the region introduced legislation clarifying that coal combustion residuals should be 

regulated by states and not be deemed hazardous wastes; and 

WHEREAS, in March 2012 the United States Environmental Protection Agency released a decision 

on the federal regional haze program approving the State Department of Health's decision to require 

selective noncatalytic reduction technology at the MiHon R. Young Station and the Leland Olds Station, 

but requiring the installation of other technologies for the Antelope Valley Station and the Coal Creek 

Station resulting in a federal implementation plan for the two unns; and 

WHEREAS, in December 2012 the United States Environmental Protection Agency issued a notice 

that it intended to reopen the North Dakota regional haze issue in response to a petnion filed by a 

number of environmental groups; and 

WHEREAS, in April 2012 the United States Environmental Protection Agency proposed new carbon 

dioxide emission standards requiring new coal·based electric generation unns to meet an emission 

standard based on the carbon dioxide emissions of a combined cycie natural gas plant; and 

WHEREAS, new lignite-based electric generation units will not be able to meet the proposed 

carbon dioxide emission standards until carbon dioxide capture technology is developed for 

widespread, commercial installation; and 

WHEREAS. the United States Environmental Protection Agency stated in the April 2012 proposed 

rule that no notable carbon dioxide or other pollutant emissions changes or monetized benefits were 

anticipated with the new carbon dioxide emission standards; and 

WHEREAS, the North Dakota IignnB industry employs thousands of individuals and contributes 

over $3.5 billion in business activRy in North Dakota each year; and 

WHEREAS, if the United States Environmental Protection Agency continues to issue regulations 

that are not based on sound science and that will have significant impact on consumer electricRy costs, 

the North Dakota IignRe industry will struggle to provide low·cost, reliable electricity to the two million 

consumers served by North Dakota lignite·based generation across the Northern Great Plains; and 

WHEREAS, under the present federal regulatory agenda, the state is in danger of losing 

high·paying jobs related to the lignite industry as well as revenue generated through taxes and 

business activity; 

NOW, THEREFORE, BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF NORTH 

DAKOTA. THE SENATE CONCURRING THEREIN: 
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82182.104

H. C. R. NO. 3026 - PAGE 2 

That the Sixty-third Legislative Assembly urges the Unned States Environmental Protection Agency 

to refrain from enacting regulations that regulate coal combustion residuals as hazardous wastes and 

allow the State Department of Health to continue to regulate coal combustion residuals under its current 

regulatCll'f structure; and 

That the Unned States Environmental Protection Agency support its March 2012 decision related to 

the state's regional haze implementation plan and delegate to the state the responsibility for working 

with the Antelope Valley Station and the Coal Creek Station to achieve the federal implementation plan; 

and 

That the United States Environmental Protection Agency refrain from finalizing regulations for 

carbon dioxide emission standards which require coal to meet an emission standard based on the 

carbon dioxide emissions of a combined cycle natural gas plant and to refrain from proposing carbon 

dioxide emissions standards for existing coal-based electric generation units; and 

That the Sixty-third Legislative Assembly urges the United States EnVironmental Protection Agency 

to work with the state, the North Dakota Congressional Delegation, and the North Dakota lignite 

industry to design regulatory programs that are based on sound science and that make economic 

sense for the consumers of North Dakota lignne; and 

That the members of the Sixty-third Legislative Assembly support the efforts of the lignite industry to 

find common sense technology solutions that will facnnate the continuation of lignite-based electric 

generation; and 

That the members of the Sixty-third Legislative Assembly support the efforts of the lignite industry to 

challenge regulations that will significantly impact the ability of the industry to continue to generate 

electricity from existing lignite-based plants; and 

BE IT FURTHER RESOLVED, that the Secretary of State forward copies of this resolution to the 

President of the United States, the Director of the United States Environmental Protection Agency, each 

member of the North Dakota Congressional Delegation, the State Department of Health, and the Public 

Service Commission. 

Speaker of the House 

~ .. 1.Ll :r.t(...J. lef Clerk of the House 
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82182.113

PCIh 

Portland Cement Association 

U.S. House of Representatives, Committee on Energy and Commerce, 

Environment and Economy Subcommittee 

On S. 3512 as a discussion draft, the Coal Ash Recycling and Oversight Act 

Statement of the Portland Cement Association 

April 11, 2013 

The Portland Cement Association (PCA), which represents 26 U.S. cement manufacturers 

operating 79 plants in 34 states, and distribution facilities in all 50 states, welcomes introduction 

oflegislation similar to S. 3512, the Coal Ash Recycling and Oversight Act of2012. Cement 

makers are key stakeholders in any legislation intended to preserve the beneficial use and 

recycling of coal ash, aka Coal Combustion Residuals (CCRs), a goal that S. 3512 would achieve 

by pre-empting EPA classification of coal ash as hazardous waste under RCRA Subtitle C. 

Classification of coal ash as a hazardous waste, or even the regulatory uncertainty related to the 

stalled EPA rulemalcing, would impact the recycling of CCBs, including that used by cement 

makers. 

Coal ash recycling has remained flat in recent years at least in part due to the federal regulatory 

uncertainty, which S. 3512 would mitigate. For example, the amount of coal ash used in 

concrete production in 2011 was 11.7 million tons, up slightly from 11.0 million tons in 201 0 but 

still below 12.6 million tons in 2008, before the EPA proposal. In addition to the I J. 7 million of 

tons of coal ash recycled in the production of concrete, cement makers typically recycle an 

additional three million tons as a raw material in cement making. CCBs used in the cement 

manufucturing process serve as a substitute for key ingredients in cement, which would 

otherwise have to be mined. Coal ash used in concrete production, combined with the amount 

used by cement manufacturers as a raw material, accounts for more than 10% of the 130.7 

million tons of the material produced in the country every year. 

Cement manufacturers have endorsed previous bills that would prevent unnecessary regulation 

ofCCRs, including S. 3512, and H.R. 2273, offered by Rep. McKinley (R-WV). Cement 

manufacturers believe that a legislative remedy pre-empting classification of CCBs as hazardous 

waste will not only help preserve high quality manufacturing jobs by curtailing unnecessary 

regulation, but also promote environmental stewardship by providing incentives for increased 

recycling of coal ash, or beneficial use. PCA is happy to continue to work with members of the 

subcommittee to put forth a bill that will address disposal of the material, thereby mitigating 

potential unforeseen impacts on beneficial use practices employed by manufacturers. PCA 

welcomes the opportunity to work with members of the committee to encourage passage of a 

balanced bill during the 113th Congress that will preserve jobs and promote recycling. For more 

information on cement manufacturers' support for S. 3512, please contact Bryan Brendle at 

(202)719-1978. Thank you. 
164 


82182.114

Geosyntec C> 

consultants 

The Honorable John Shimkus 

Chairman, Subcommittee on Energy and Environment, 

Committee on Energy and Commerce 

U.S. House of Representatives 

Washington, D.C. 20515 

10220 Old Columbia Road, Suite A 

Columbia, Marylaod 21046 

PH 410.381A333 

fAX41Q.)8L4499 

.WWW.Geosynrec.com 

II April 2013 

Subject: Comments to Discussion Draft ofH.R. __ , Entitled "The Coal Ash Recycling and 

Oversight Act of 2013" 

Dear Chairman Shimkus: 

We are civil and geotechnical engineers with twenty-five years (Mr. Houlihan) and thirty years 

(Dr. Bachus) of experience in the design, permitting, construction, post-closure care, and 

redevelopment of waste disposal facilities. This experience includes significant work on 

landfills, including numerous coal combustion residual (CCR) landfills. Over the past twentyfive years, our firm, Geosyntec Consultants (Geosyntec), and we have witnessed and contributed 

to a substantial advancement of the state-of-the-practice in municipal solid waste management. 

These advances have resulted in standard practices for regulation, design, construction, and longterm care that are much more protective of human health and the environment than former 

standard practices. At today's hearing, the House of Representatives is considering a bill that is 

intended to advance the protectiveness of human health and the environment through improved 

management of residuals generated by the combustion of coal (i.e. coal combustion residuals, or 

CCRs). Our purposes in this letter are to support the proposed bill and to address some concerns 

raised by one oftoday's witnesses regarding implementation of the bill's provisions. 

The Coal Ash Recycling and Oversight Act of 2013 - Discussion Draft (i.e., Draft Act) proposes 

to amend Subtitle D of the Resource Conservation and Recovery Act (RCRA) to include 

provisions for management and disposal of CCRs. The Draft Act establishes a Federal standard 

of protection of human health and the environment, implemented through CCR management 

regulations at the State level. Further, the Draft Act establishes controls for the design, 

groundwater monitoring, corrective action, closure, and post-closure care of CCR landfills, as 

well as location restrictions, air quality, financial assurance, surface water management, record 

keeping, and run-on and run-off control systems. In doing so, the Draft Act appears to address 

the objectives sought by EPA in the Proposed Rule (i.e., 75 FR 35128), which was to develop 

standards for a regulatory program similar to the Subtitle D regulatory program for municipal 

waste landfills. Work by USEPA and others, including our firm, have shown that landfills 

constructed and operated in compliance with the USEPA's Subtitle D regulations have 

performed well and are protective of human health and the environment. 

We have also read the written statement of Mr. Jack Sparado to your subcommittee, and we 

share his desire to achieve a regulatory framework that will provide for safe operation of existing 

engineers! scientists I innovators 
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82182.115

Comments to Discussion Draft of H.R. __ , Entitled "The Coal Ash Recycling and 

Oversight Act of2013" 

II April 2013 

Page 2 of3 

CCR dams and containment systems. Mr. Sparado expressed several concerns that we would 

like to comment on, specifically his concerns regarding: (i) the need for regulation governing 

the design, permitting, construction, and post-closure care of CCR dams; (ii) the need for 

specific engineering standards of practice that constitute generally accepted, good engineering 

practices for the safe design, construction, and operation of CCR dams and containment 

structures; and (iii) whether an independent engineer'S certification can be relied upon as a 

valid indicator of CCR dam and containment structure stability. Mr. Sparado's concerns appear 

to be focused on the stability of existing structures that will continue to be operated in the future, 

not new structures. These concerns are addressed below. 

• Regulation of CCR Dams and Containment Systems. The Draft Act is intended to 

provide the type of regulation of CCR dams and containment systems that Mr. Sparado is 

advocating. Further, the Draft Act is specific regarding its intent for the State Permit 

Programs to provide the kind of clear, definitive, and enforceable laws that Mr. Sparado 

recommends. In this sense, the Draft Act addresses these concerns of Mr. Sparado. We 

concur with Mr. Sparad regarding the need for enforcement of the regulations. 

The Need for Specific Engineering Standards of Practice. Standards of practice exist for 

safe design, construction, and operation of CCR dams and containment structures, 

including stability assessments of existing structures. The available documents that 

describe the state of the engineering practice in this regard are numerous and include, for 

example, FEMA's Federal Guidelines/or Dam Safety\ the US Bureau of Reclamation's 

Safety Evaluation of Existing Dam;, and USEPA's Solid Waste Disposal Facility 

Criterial

. In addition, there are numerous organizations in the United States that 

promote and publish standards of practice for the design and construction of safe dams 4, 

and also several organizations that promote and publish standards for the design of safe 

waste containment systemss. Although the standard of practice for these types of 

evaluations continues to evolve as they relate to CCR dams and containment systems, 

these existing referenced standards represent a valid basis for practice of the design and 

construction of CCR dams and containment systems. We believe that new standards 

specific to CRR dams are at this time unnecessary. 

• Validity of an Independent Engineer's Certification Statement. The requirement for a 

licensed professional to certify that a structure's design or performance conforms to 

accepted engineering practices is common and is a reasonable component of a system of 

regulation. The requirements of nearly all States for continuing education of licensed 

'u.S. Department of Homeland Security, Federal Emergency Management Agency, June 1979. 

2 US Department of the Interior, Bureau or Reclamation (Water and Power Resources Services), "Safety Evaluation 

of Existing Dams". Denver, CO, 1980. 

'USEPA Document EPAS30-R-93-017, November 1993. 

4 For example, the US Army Corps of Engineers, Association of State Dame Safety Officials, the US Bureau of 

Reclamation, and the American Society of Civil Engineers. 

l For example, the Solid Waste Association of North America, Association of State and Territorial Solid Waste 

Management Officials, Electric Power Research Institute, USEPA, National Solid Waste Management Association, 

Geosynthetics Research Institute, Environmental Industries Association. 

engineers I scientists I innovators 
166 


82182.116

Comments to Discussion Draft of H.R. __ , Entitled "The Coal Ash Recycling and 

Oversight Act of2013" 

11 April 2013 

Page 3 00 

professional engineers promotes the availability of competent practitioners for this task. 

Of course, without agreement on the standard of practice, such certification could lack 

specificity and validity. However, as discussed in the previous paragraph, standards of 

practice do exist for the safe design, construction, and operation of CCR dams and 

containment systems. If the State regulations promulgated under the Draft Act reference 

these or similarly applicable standards of practice, then the engineer's certification 

statement will have specificity and validity. If promulgated in this way, the regulations 

would not leave the selection of design and maintenance criteria to the arbitrary judgment 

of an independent engineer, as postulated by Mr. Sparado, but instead would be identified 

and enforced by the regulatory body. As we understand it, the Draft Act provides for the 

identification and enforcement of such design and maintenance standards. 

We would like to point out to the Committee that there are many parallels between the proposed 

legislation and the Subtitle D regulations that were promUlgated n 1991 for municipal solid waste 

and which are included in Part 258 of Title 40 of the Code of Federal Regulations (40 CFR 258). 

Implementation of these regulations addressed waste management units and included a 

requirement for engineering certification of the design and construction of such units, similar to 

the requirements for certification in the Draft Act. Implementation of the regulations at the State 

level was accompanied by the development of standards of practice for engineers' use in 

fulfilling the requirements of the regulations. These standards were based initially on practices 

for similar structures (e.g., earth benns, low-penneability soil layers, engineered fabrics, etc.) 

and were adapted over time for specific use in the design, construction, and operation of 

municipal waste landfills. The success of this approach bodes well for the approach proposed in 

the Draft Act, which is expected to rely on the implementation approach of the Subtitle D 

regulations for municipal solid waste. Also, this body of knowledge represents a significant 

resource to engineers who will assess the stability of existing CCR containment systems and 

develop designs for new CCR containment systems when modifications are needed. Based on 

these considerations, we believe that the proposed legislation can result in an effective, 

enforceable regulatory framework for management of CCRs that is appropriately protective of 

human health and the environment. 

engineers f scientists I innovators 

Sincerely, 

M4~ 

Michael F. Houlihan, P.E., DEE, D.GE, F.ASCE 

Principal 

Robert C. Bachus, Ph.D., P.E., D.GE 

Principal 
167 


82182.117

April II, 2013 

The Honorable John Shimkus Chairman 

Subcommittee on Energy and Environment - Committee on Energy and Commerce 

U.S. House of Representatives 

Dear Chairman Shimkus: 

Subject: Discussion Draft ofH.R. S.3512, The Coal Ash Recycling and Oversight Act of 

2013. 

Chairman John Shimkus and Members of the Subcommittee: 

On behalf of Civil & Engineering Consultants, Inc. (CEC), we appreciate the Subcommittee's 

consideration of our professional insights into the current industry engineering practices related 

to the management of Coal Combustion Residuals (CCRs), specifically regarding wet 

impoundments. CEC is a US consulting firm comprised of engineers, scientists, and 

environmental professionals providing services to the electric utility industry and other industrial 

clients for over 25 years lead by senior professionals with over 45 years industry experience. 

Our professional services include siting, design, construction, construction quality assurance and 

maintenance/monitoring of electric utility darns/impoundments utilizing a standard of care 

expected from licensed professionals. 

The industry and engineers within the industry, have advanced design and operational 

management techniques and oversight based on past experiences, regulations, and considerations 

associated with impoundments. The Buffalo Creek failure of 1972 was a tragedy that occurred 

when no significant design requirements existed and inspections were not required. Although a 

coal mine refuse impoundment is not a CCR impoundment, ultimately, the failure of the dam 

was the result of the impoundment overtopping due to a lack of freeboard and emergency 

spillway in the design, not the construction process or design of the dike itself; this has been 

clearly documented by industry experts. Regardless, the industry'S adherence to regulatory 

framework changed dramatically following that failure based on the development of a Dam 

Safety Program implemented by the States with requirements for hydraulic and geotechnical 

design, ranking systems based on criteria including downstream impacts, and 

inspection/maintenance and monitoring programs. By the late 1970s and early 1980s, CCRs 

were generally being disposed of in engineered facilities because of State agencies, and the fact 

that industry recognized that proper and safe waste disposal using time-tested engineering 

principles was just good business. To equate 1972 coal waste disposal practices (i.e., Buffalo 

Cleveland 5910 Harper Road I Suite 106 

Solon, Ohio 44139 

Ph: 440/287·01571 Fx: 44O{287·0160 

Toll Free: 866/507·2324 

cleveland@cecinc.com 

www.cecinc.com 

Civil & Environmental Consultants, Inc. Austin 

Boston 

Charlotte 

Chicago 

Cincinnati 

8551365·2324 

8661312-2024 

855f859-9932 

877/963-6026 

B00f7S9-5614 

Columbus 

Detroit 

Export 

Indianapolis 

Nashville 

888/598-6808 

866/380-2324 

800/899·3610 

8771746-0749 

8001763-2326 

North Central PA 

Phoenix 

pittsburgh 

St,Louis 

Toledo 

8771321-2324 

8771231·2324 

800f365·2324 

8661250-3679 

8B8/598-6808 
168 


82182.118

The Honorable John Shimkus Chainnan 

Page 20f2 

April II, 2013 

Creek) with current CCR disposal practices is not a rational comparison. It ignores decades of 

CCR disposal in properly designed, constructed, and operated facilities. 

In a related note, the phrasing "recognized and generally accepted good engineering practices" as 

proposed in the legislation embraces/represents "the Standard of Care" which is the overriding 

measure of the perfonnance of engineers in legal matters, such as would emanate from a failure 

of a structure designed by an engineer. The "Standard of Care" does vary by state and by the 

complexity of the design requirements and is subject to interpretation thereby reflecting the need 

for qualified engineers involved in the design, construction and ongoing maintenance and 

monitoring process. These facilities can be complex and the construction or engineering issues 

require special attention. Accordingly, professional engineers using time-tested industry 

accepted standards (e.g., safe design and operational standards provided by Anny Corps of 

Engineers and the American Society of Civil Engineers, etc.) represent "recognized and 

generally accepted good engineering practices"; this approach is proven and adequate. 

Furthennore, the reliance on an engineering standard of care will result in the development of 

safer facilities as compared to reliance on "prescriptive design requirements". When prescriptive 

requirements are legislated, all parties involved have a focus on achieving a specific numeric 

standard, rather than focusing on the overall objective for the facility and what design parameters 

would be appropriate. Although prescriptive regulations often use tenns such as "a minimum 

factor of safety of 1.5", the majority of professional and industry representatives view such 

factors of safety as the goal to achieve. In fact, there are times when the factor of safety of 1.5 is 

not sufficient depending on the hazard of the structure. So, instead of a rational evaluation of an 

appropriate factor of safety for design of a facility, the design is focused on achieving a 

"prescriptive regulation" that may or may not be appropriate considering the site-specific 

conditions. In our opinion, the use of the language as proposed in the subject legislation (i.e., 

"recognized and generally accepted good engineering practices") is appropriate and results in 

safe and well-engineered CCR impoundments. 

Very truly yours, 

CIVIL & ENVIRONMENTAL CONSULTANTS, INC. 

Steven F. Putrich 

Engineering Vice President 

Ltr to Chairman Shimkus 2013-04-11 
169 


82182.119

JUl 12 2013 

I'll" I !,morable John Shimkus. Chairman 

Subl:ommittee on En\"ironment and the Economy 

Committee- on Energy and Commern! 

U.S. H"u,;c ,)1' Representatives 

Washington. DC 2()S15 

[Jcar Chairman Shimkus: 

'1 hank you tor your Iener of ,\pril29, 2013, requesting responses 10 Questions ie)r the Record 

following the April 11. 2013. hearing beforc the Subcommittee on Em ironment and the 

Economy entitled. "The Coal Ash Recycling and Owrsight Act 01'2013." 

The rcsponst.'s to the questions arc prnyidcd as im enclosure to this :etter. If you haxc a:1Y fUJ1hcr 

questions. please contact me or YOUT starr may contact Carolyn Levine in FPA1s Office of 

Congrcs,ional and Intcrgo\'ernmenlal Relations at (202) 564·1859. 

r':nclosure 

Sincerely. 

T .aura Vaught 

Deputy ,\ssociate Admi:tistrator 

for Congressional Affairs 

ec: ('he lIonorable Paul Tcmko. Ranking Member 

Subcommittee on Environment and the Economy 
170 


82182.120

Rep. Latta 

U.S. EPA RESPONSES TO QUESTIONS FOR THE RECORD 

From the Aprilll, 2013 Hearing On 

"The Coal Ash Recycling and Oversight Act of2013" 

Before the Subcommittee on Environment and Economy 

Committee on Energy and Commerce 

U.S. House of Representatives 

Ql. Do you agree that the bill includes all of the constituents identified by the EPA as being of 

concern for coal ash? 

We believe that the proper management ofCCRs should include clear requirements that address 

risks associated with coal ash disposal and management, consideration of the best science and data 

available, adequate evaluation of structural integrity, protective solutions for existing as well as new 

facilities, and appropriate public information and comment. 

The Discussion Draft contains provisions that address specific contaminants, particularly the 

requirement to monitor for the contaminants listed in 40 CFR Part 258. This requirement does 

address the contaminants that were specifically listed in the EPA's 2010 proposed regulation. 

Q2. Doesn't the bill set a timeline for meeting the groundwater protection standards for 

surface impoundments that are in corrective? 

The Discussion Draft includes a provision that establishes a timeline for a limited subset of surface 

impoundments to meet the groundwater protections standards. However, with one narrow 

exception I, states are authorized to extend the 8-10 year cleanup deadlines without any time limits, 

which could potentially pose additional risk to human health and the environment. The requirements 

in subsection (c)(4) do not apply to any other surface impoundment (e.g., a clay-lined unit that is 

currently leaking, but not currently subject to a state corrective action requirement), or to any 

landfills. 

Q3. Does the bill require financial assurance? 

The Discussion Draft appears to require a state penn it program to require financial assurance as 

currently described in subpart G of 40 CFR Part 258. The requirements apply only to units that 

receive CCRs after date of enactment ofthe legislation. 

1 States may not extend the clean up deadlines jf there has been contamination of public or private drinking water systems attributable to a 

surface impoundment undergoing corrective action, unless the contamin<ltion has been addressed by providing a permanent replacement water 

system. 
171 


82182.121

Rep. Johnson 

Ql. Does CERCLA give EPA the authority to address inactive or abandoned impoundments 

or units? 

CERCLA provides the EPA with the authority to respond to releases and threatened releases of 

hazardous substances and pollutants and contaminants from inactive or abandoned impoundments or 

units that pose an imminent and substantial endangerment to public health or the environment. 

CERCLA generally would not provide the EPA authority to establish preventive measures on a 

nationwide basis. e.g., closure requirements. Also, using CERCLA to address such units could shift 

the financial burden away from those responsible for contamination to the public taxpayers. 

Q2. Also, Mr. Stanislaus, following Kingston, EPA inspected coal ash impoundments, some 

600 of them, in fact, to make sure that they are structurally sound. You hired independent 

contractors who in the agency's own view are experts in the area of dam integrity. Do you 

agree with the findings of your staff that not a single eoal ash impoundment was rated 

unsatisfactory and poses an immediate safety threat? 

While it is true that no units were rated unsatisfactory, requiring emergency action, approximately 

25% of the units were rated "poor.": The EPA has sent letters to the owners of the surface 

impoundments requesting that the deficiencies be remedied, but there is no law or regulation that 

rcquires the owners to do so. The owners voluntarily conducted the significant engineering studies 

to demonstrate whether the units were structurally sound. It is also important to note that these 

assessmcnts were a one-time effort and a continuous monitoring program is necessary to verify 

structural integrity. Finally, please notc that of the 144 units that have been rated "poor" to date, II 

were classified as high hazard and 69 were classified as significant hazard, meaning that in the event 

of a failure, loss of human life or damage to critical infrastructure is likely to occur. 

Q3. Do you agree with the findings of your professional staff as well that the owners and 

operators of impoundments with identified deficiencies have responded responsibly by 

submitting response action plans? 

Owners and operators have submitted action plans in response to final report recommendations. 

However, we would note that it is the responsibility ofthc owner or operator of the impoundments to 

implement the recommendations in the actions plans. 

2 EPA used five categories to rate the units: (l) Satisfactory (no existing or potential management unit safety deficiencies are recognized); (2) 

Acceptable (performance is expected under aB applicable loading conditions (static, hydrologic, seismk) in accordance with the applicable 

criteria; minor maintenance items may be required); (3) Fair (acceptable performance is expected under aU required loading conditions (static, 

hydrologic, seismic) in accordance with the applicable safety regulatory criteria; minor deficiencies may exist that require remedial action and/or 

secondary studies or investigations); (4) Poor (a management unit safety deficiency is recognized for a required loading condition (static, 

hydrologic, seismic) in accordance with the applicab!e dam safety regulatory criteria; remedial action is necessary or further critical studies or 

investigations are needed to identify any potentia! dam safety deficiencies); and (5) unsatisfactory (considered unsafe; dam safety deficiency is 

recognized that requires immediate or emergency remedial action for problem resolution; reservoir restrictions may be necessary). 

2 
172 


82182.122

Rep. Tonko 

Q1. And EPA's technical assistance states that under the previous language, dry landfills 

would not be required to comply with many ofthe operating criteria that cnrrently apply to 

municipal solid waste and would be applied to coal ash under EPA's proposed rule. Does this 

discussion draft fix that flaw with the previous proposal? 

No. For example. the Discussion Draft does not incorporate all of the regulatory operating 

requirements now required of municipal solid waste landfills under RCRA. 

Rep. Dingell 

Ql. Do you believe this draft bill has the timelines and minimum legal standards of protection 

to ensure that proper program plans are implemented in the states? Yes or no. 

With respect to timelines. the Discussion Draft available at the time this question was submitted 

included only one clear deadline for implementation of the substantive requirements: a deadline for 

states to require the installation of groundwater monitoring system (one year from a state's 

certification--0r no later than four years from enactment). Although section (c)( 4) appears to 

establish deadlines to clean up or initiate closure for certain surface impoundments. with one narrow 

exception, states have unlimited authority to extend these deadlines without any limits. 

A revised bill has since been developed that includes additional deadlines: a four-year deadline for 

states to require compliance with (a) surface impoundment inspections; (b) run-on and run-off 

controls, and (c) fugitive dust controls. In addition, the revised bill establishes a seven-year deadline 

for the issuance of final permits. 

With respect to the minimum legal standards, we would note the conclusions in the March 19,2013 

Congressional Research Service (CRS) report, "Analysis of Recent Proposals to Amend the 

Resource Conservation and Recovery Act (RCRA) to Create a Coal Combustion Residuals Permit 

Program," which concludes there are significant differences between this legislation and the 

approach used in the legislation applicable to municipal solid waste (MSW) programs. The report 

notes that the Discussion Draft establishes no formal role for the EPA and no direction to establish 

rcgulations or approve state programs. The CRS report concludes. among other things. that the 

approach in the legislation allows individual states to define key tenns, such that states would deilne 

program applicability and the overall protections under the bill could vary from state to state; allows 

states to set their own deadlines for permit issuance and for compliance; and does not require state 

programs to meet a fedcral standard of protection. 

Overall, we believe any final legislation needs to clearly address: (1) timelines for the 

implementation of state programs; (2) criteria, for the EPA to use to determine when a state program 

is deficient, (3) criteria for CCR unit structural integrity, (4) deadlines for closure of unlined or 

leaking units, including inactive or abandoned units, (5) the universe ofCCR disposal units subject 

to a permit program, and (6) groundwater protection standards that address all constituents identilled 

in H.R. 2218 that are contained in coal combustion residuals. 

The EPA is available to provide further technical assistance to help ensure that the legislation 

includes necessary protections for human health and the environment. 

3 
173 


82182.123

Q2. Under EPA's proposed rule to establish requirements to address this issue, in your 

testimony you said that EPA received nearly [a] half million public comments, solicited public 

data, started drafting a methodology to evaluate the beneficial uses. Under the legislative 

proposal before us, would EPA have the authority to gather public comments, technical data, 

or develop methodologies in the future to improve the implementation of the program 

proposed in the bill? Yes or no? 

No. It appears that the EPA's only role is to identify deficiencies in a state program after the state 

program has been implemented, or to implement a permit program for a state that chooses not to do 

so or that fails to address a program deficiency identified by the EPA. For example, certain 

provisions of the bill expressly restrict the EPA's authority to take actions to improve 

implementation of the program proposed in the bill. This includes the deferral clause in section 

(i)(2)(A), which, according to H.R. Rep. 112-226. "prohibits the Administrator from promulgating 

any additional regulations to regulate coal combustion residuals." 

The EPA is available to provide further technical assistance to help ensure that legislation includes 

necessary protections tor human health and the environment. 

Q3. What four or five national standards do you believe should be specifically addressed and 

added to this legislation to ensure that there is national conformity amongst several states? 

We believe any bill needs to clearly address defined timelines for the development and 

implementation of state programs; establish clear and strong criteria for the EPA to use to determine 

when a state program is deficient; establish criteria for CCR unit structural integrity; establish clear 

deadlines for closure of unlined or leaking units, including inactive or abandoned units, establish a 

clearly defined, nationally consistent universe ofCCR disposal units, including large scale fill 

operations, which are akin to disposal, subject to a permit program and groundwater protection 

standards that address all constituents identified in H.R. 2218 that are contained in coal combustion 

residuals. 

The EPA is available to provide further technical assistance to help ensure that the legislation 

includes necessary protections for human health and the environment. 

Q4. Now do you believe this legislation as currently written would require these standards to 

be included in state program plans? 

No, neither thc Discussion Draft referred to in this question, nor the later introduced H.R. 2218, 

address all of these standards. The EPA stands ready to provide further technical assistance to help 

ensure that the legislation establishes a regulatory framework for managing CCRs in a nationally 

consistent manner that fully protects human health and the environment. 

Rep. Capps 

Q1. In technical assistance you provided to the committee last Congress, you identified 

multiple principal contaminants of concern in coal ash, including arsenic, cadmium, lead, 

mercury and many others. These heavy metals pose very serious threats to human health. 

Would you, for our hearing today, please identify briefly some of the health effects of these 

contaminants? 

4 
174 


82182.124

The Agency for Toxic Substances and Disease Registry (A TSDR) ToxFAQs, 3 the EPA Integrated 

Risk Infonnation System (IRIS), 4 and the Toxicology Data Network (TOXNET) of the National 

Institutes of Health' are all sources of toxicological data on the hazardous constituents found in 

CCRs, For its proposed rule, the EPA identified potential constituents of concern associated with 

CCRs, including antimony, arsenic, barium, beryllium, cadmium, hexavalent chromium, lead, 

mercury, nickel, selenium, silver, and thallium. Based on the information in ASTDR's Tox FAQs, 

the EPA's IRIS system and TOXNET, the agency summarized the following significant health 

effects: 

Antimony - Antimony is associated with altered glucose and cholesterol levels, myocardial effects. 

and spontaneous abortions. The EPA has set a limit of 145 ppb in lakes and streams to protect 

human health from the harmful effects of antimony taken in through water and contaminated fish 

and shellfish. 6 

Arsenic - Ingestion of arsenic has been shown to cause skin cancer and cancer in the liver, bladder 

and lungs. 7 

Barium - Barium has been found to potentially cause gastrointestinal disturbances and muscular 

weaknesses when people are exposed to it at levels above the EPA drinking water standards for 

relatively short periods of time. 

Beryllium - Beryllium can be harmful if you breathe it. If beryllium air levels are high enough 

(greater than 1.000 ug/m 3). an acute condition can result. This condition resembles pneumonia and 

is called acute beryllium disease. 9 

Cadmium and Lead - Cadmium and lead have the following effects: kidney disease. lung disease, 

fragile bone, decreased nervous system function, high blood pressure, and anemia. 10 

Hexavalent Chromium - Hexavalent chromium has been shown to cause lung cancer when inhaled. 11 

1l1ercury - Exposure to high levels of metallic, inorganic, or organic mercury can pennanently 

damage the brain, kidneys, and developing fetus. 12 

Nickel- The most common hannful health effect of nickel in humans is an allergic reaction. 

Approximately 10-20% of the population is sensitive to nickel. The most common reaction is a skin 

rash at the site of contact. Less frequently, some people who are sensitive to nickel have asthma 

attacks following exposure to nickel. Some sensitized people react when they consume food or water 

containing nickel or breathe dust containing it. 13 

Selenium - Selenium is associated with selenosis. 14 

Silver - Exposure to high levels of silver for a long period of time may result in a condition called 

arygria, a blue-gray discoloration of the skin and other body tissues. 15 

Thallium. - Thallium exposure is associated with hair loss. as well as nervous and reproductive 

system damage. 1b 

3 http://wwwatsdr.cdc.qov/toxfaq.html 

4 ~epa.qovlncea/iris/index.cfm ?fuseaction-irls.showSubstanceList&list tvoe=olpha&view-B 

5 http://toxnet.nfm.nih.qov!cqi-bin/sislhtmlqen?HSDB 

6 Ibid. 

7 ATSDR ToxFAQs. Available at: http://www.otsdr.cdc.qovlto)(faq.hlml 

slbid. 

Slbid. 

10 Ibid. 

ll/bid. 

nlbid. 

13 Ibid. 

14 Ibid. 

15 Ibid. 

IS/bid. 

5 
175 


82182.125

Additionally, several other adverse health effects associated with CCRs are the result of particulate 

matter inhalation due to dry CCR disposal. Human health effects for which the EPA is evaluating 

causality due to particulate matter cxposure inelude (a) cardiovascular morbidity, (b) respiratory 

morbidity, (c) mortality, (d) reproductive effects, (el developmental effects, and (f) cancer. 17 The 

potential for and extent ofadvcrse health effects due to fugitive dusts from dry CCR disposal was 

demonstrated in the 2009 EPA report "Inhalation of Fugitive Dust: A Screening Assessment of the 

Risks Posed by Coal Combustion Waste Landfills-DRAFT;' which is available in the EPA's rule 

docket. 18 

Finally, injury to human health may result ii-om catastrophic failures of surface impoundments where 

high hazard potential exists. As defined in the proposed rule, a high hazard potential surface 

impoundment was defined as a "surface impoundment where failure or mis-operation will probably 

cause loss of human life." This definition follows the Hazard Potential Classification System for 

Dams, developed by the U.S. Army Corps of Engineers for the National Inventory of Dams. 

Chairman Shimkus 

Q1. Does CERCLA give EPA the authority to address inactive or abandoned coal ash 

impoundments/units? Why or Why not? Please explain. 

a. Would EPA's authority under CERCLA be sufficient to address any inactive or 

abandoned coal ash impoundments that may pose a threat to public health or welfare or the 

environment? 

CERCLA provides the EPA with the authority to respond to releases and threatened releases of 

hazardous substances and pollutants and contaminants from inactive or abandoned coal ash 

impoundments/units that may pose an imminent and substantial endangerment to public health or the 

cnvironment. CERCLA generally would not provide the EPA authority to establish preventive 

measures on a nationwide basis, e.g., closure requirements. In addition, using CERCLA to address 

such units could shift the financial burden away from those responsible for contamination to the 

public taxpayers. 

Q2. From information gathcred as part of the Steam Electric Power Generating effluent 

limitation guidelines rulemaking, does EPA have information regarding the location of coal 

ash impoundments? 

a. Please be specific in your answer as to specifically wbat information EPA has requested 

and from whom. 

In 2010, as part of its proposed effluent limitation guidelines and standards efforts. the EPA 

transmitted qucstionnaires to approximately 700 steam electric power plants to solicit information 

regarding wastewater, surface impoundment, and landfill operations. In Part A ofthe questionnaire 

(Question A3-2), the EPA requested the latitude and longitude of ponds in degrees, minutes, and 

seconds. This portion of the questionnaire was sent to all steam electric generating plants. 

17 Source: EPA Office of Research & Development report "Integrated Science Assessment for Particulate Matter: First External Review Draft," 

EPA!600!R-08!139. 2008. 

18www.regulations.govDocument 10: EPA~HQ·RCRA~2009·0640"0142 

6 
176 


82182.126

b. Please be specific about what information EPA currently has or expects to receive. 

The EPA received responses from all the plants required to respond to Part A ofthe questionnaire, 

including the latitude and longitude ofthe ponds. The EPA does not expect to receive any additional 

responses to the questionnaire. 

Q3. From information gathered as part of the Steam Electric power Generating emucnt 

limitation guidelines rulemaking, does EPA currently have, for coal ash impoundments, 

specific information such as ground water monitoring data or other information regarding the 

performance of the unit? 

a. Please be specific in your answer as to specifically what information EPA has requested 

and from whom. 

In Part F of the EPA's 2009 Steam Electric Questionnaire (Questions F5-1 through F5-6), the EPA 

requested several pieces of information regarding the groundwater monitoring and performance of 

surface impoundments. This included whether the units performed groundwater monitoring, the 

year of the last monitoring event, average frequency of monitoring, number oftimcs monitored in 

the past five years, whether and which constituents exceeded the MCL and/or state issucd criteria, 

and whether and which constituents exceed cd background concentrations. This portion ofthe 

questionnaire was sent to a suhset of steam electric generating plants. 

b. Please be specific about what information EPA currently has or expects to receive. 

The EPA received responses from all of the plants required to respond to Part F of the questionnaire. 

Some plants claimed the responses as Confidential Business Information (CBl). The EPA is 

continuing to evaluate how (0 use this infomlation due to these limitations. Thc EPA does not expect 

to receive any additional responses to the questionnaire. 

Q4. How does EPA plan to coordinate the Steam Electric Power generating emuent limitation 

guidelines rulemaking and the rulemaking for Coal Combustion Residuals? 

In the preamhle to the proposed Steam Electric Power Generating effluent limitation guidelines 

(ELG) rulemaking, the EPA descrihed its current thinking ahout how a final RCRA Coal 

Combustion Residuals (CCR) rule might be aligned and structured to account for any final ELG 

requirements. 78 Fed. Reg. 34,432, 34,441-34,442 (June 7, 2013). The EPA seeks to effectively 

coordinate any final RCRA requirements with the ELG requirements to minimize the overall 

complexity of these two regulatory structures, and facilitate implementation of engineering, financial 

and permitting activities. The EPA's approach would also be consistent with RCRA Section 

1006(b) and with Executive Order 13563, "Improving Regulation and Regulatory Review" issued on 

January 18,2011. The EPA's goal is to ensure that the two rules work together to effectively 

address the discharge of pollutants from steam electric generating facilities and the human health and 

environmental risks associated with the disposal of CCRs without creating avoidable or unnecessary 

burdens. 

As described in the ELG preamble, the EPA is exploring two primary means of integrating the two 

rules: (1) through coordinating the design of any final substantive CCR regulatory requirements, and 

(2) through coordination ofthe timing and implementation of final rule requirements to provide 

7 
177 


82182.127

facilities with a reasonable timeline for implementation that allows for coordinated planning and 

protects electricity reliability for consumers. 

Q5. Has EPA developed a risk assessment that supports a determination that coal ash should 

be regulated under subtitle C? 

Tbe EPA developed a risk assessment that supported a subtitle C regulation as part of the June 2010 

proposed rule. The EPA solicited and received public comment on that risk assessment. As we have 

stated, however, both during and after the close of the public comment period, the EPA has received 

new infonnation and data that have the potential to significantly afIect the risk assessment. As the 

EPA recently explained in the Preamble to the proposed Steam Electric Power Generating effluent 

limitation guidelines, although a final risk assessment for the CCR rule has not been completed, 

reliance on the new data may have the potential to lower the risk assessment results by as much as an 

order of magnitude. If this proves to be the case, the EPA's current thinking is that the revised risks, 

coupled with the ELG requirements that the agency may promulgate, and the increased federal 

oversight such requirements could achieve, could provide strong support for a conclusion that 

regulation ofCCR disposal under RCRA Subtitle D could be adequate. 

Q6. RCRA typically requires an adequacy determination of State permit programs prior to 

State implementation. Do you see any value in having EPA review the adequacy oCa State 

program after the State begins implementing it? Please explain why or why not. 

Yes. The EPA's review would be beneficial to determine whether the states are adequately 

implementing the CCR permit program. However, the EPA's ability to conduct such a review would 

be predicated on having clear criteria for defining when a state program is deficient. 

Q7. Please respond to the following questions in as much detail as possible. Please provide a 

detailed explanation of your answer: 

a. Do you agree that the Discussion Draft contains a provision requiring liners? 

Section (c)(2)(A) of the discussion draft requires new units and lateral expansions of existing units to 

meet the perfonnance standard in 258.40. Although one provision in that regulation requires the 

installation of a composite liner, another provision allows states to authorize an alternativeincluding no liner at all-based on a determination that the alternative meets the regulatory 

perfonnance standard. Also, the Discussion Draft imposes no requirements on inactive or 

abandoned units. 

b. Do you agree that the Discussion Draft contains a provision requiring groundwater 

monitoring? 

Section (c)(2)(B) requires that all "operating units (i.e., those that receive CCRs after enactment) 

meet the groundwater monitoring standards in subpart E of part 258. However, 40 CFR 258.50(b) 

allows states to suspend the groundwater monitoring system based on a detcnninatioll that a 

performance standard has been met (i.e., demonstrate "no potential for migration from the unit to the 

uppennost aquifer.") Also, the Discussion Draft imposes no requirements on inactive or abandoned 

units. 

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c. Do you agree that the Discussion Draft has a deadline for the installation of groundwater 

monitoring? 

The Diseussion Draft appears to have such a deadline one year after the state submits a 

certification, or, in other words, no later than four years after enactment for units that are currently 

operating (i.e., those that receive CCRs after enactment). The Discussion Draft imposes no 

requirements on inactive or abandoned units. 

However in order to ensure effective implementation of groundwater protection, the time frames for 

implementation of the corrective action requirements (i.e. requirements to cleanup contaminated 

groundwater) are also relevant. The Discussion Draft includes no deadlines for permit issuance or 

for ensuring the clean up or closure of leaking units or contaminated sites. 

A more recent version of the bill, H.R. 2218, (subsequent to the Discussion Draft that is the subject 

of this question) does establish a seven-year deadline for states to issue permits, but no deadlines for 

ensuring that leaking units are closed 19 or that contaminated groundwater is remediated. 

d. Do you agree that the Discussion Draft includes all of the constituents identified by EPA as 

being of concern for coal ash? 

Section (c)(2)(B) ofthe Discussion Draft would require groundwater monitoring for the 

contaminants that were specifically listed in the EPA's 2010 proposed regulation. 

e. Do you agree that the Discussion Draft sets a time limit for meeting groundwater protection 

standards for surface impoundments that are discovered to be leaking or are in corrective 

action on the date of enactment? 

As discussed previously, although section (c)(4) appears to establish deadlines to clean up or initiate 

closure for certain surface impoundments, with one narrow exception, states have unlimited 

authority to extend these deadlines indefinitely. Nor does the Discussion Draft establish any deadline 

by which facilities must complete closure of such units. The Discussion Draft also imposes no 

requirements on inactive or abandoned units. 

f. Do you agree that the Discussion Draft requires control of fugitive dust in the same manner 

as EPA did in the June 2010 Proposed Rule with the exception of the numeric limit? 

Both the Discussion Draft and the EPA's proposed rule include a fugitive dust requirement. The 

primary difference between those requirements is that the EPA's June 2010 proposed rule included a 

specific numeric limit, while the discussion draft does not. Rathcr. the Discussion Draft requires that 

units not violate any applicable requirements developed under a State Implementation Plan (SIP) 

approved or promulgated by the Administrator pursuant to section 110 of the Clean Air Act. 

JS Although subsection (c)(4) appears to establish deadHnes to clean up or initiat~ closure for certain surface impoundments, with one narrow 

exception, states have unlimited authority to extend these deadlines without any limits. 

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g. Do you agree that the Discussion Draft requires financial assurance? 

Section (c)(2)(G) of the discussion draft appears to require a state pennit program to require 

financial assurance as currently described in subpart G of 40 CFR Part 258. The requirements apply 

only to units that receive CCRs after date of enactment of the legislation. 

h. Do you agree that the Discussion Draft contains location restrictions for coal ash 

management and disposal units? 

The Discussion Draft contains a provision at Section 40 II (c )(1 )(C) labeled "Location" that requires 

that the base of the coal ash unit be located at least two feet above the upper limit of the water table. 

In addition, section (c)(2)(E) of the Discussion Draft includes different sets oflocation restrictions 

for new and existing structures. Subsection (i) requires new structures and lateral expansions of 

existing structures to comply with the location restrictions in 40 CFR 258.11-258.15. Existing 

structures that continue to operate after the date of enactment need only comply with the 

requirements relating to floodplains and unstable areas (40 CFR 258.11 and 258.15). 

Under the Subtitle D option in the EPA's June 2010 proposed rule, the EPA proposed standards that 

would restrict the location of new CCR landfills and impoundments (including lateral expansions) 

with respect to the location of the unit relative to the natural water table, to wetlands, fault areas. 

seismic impact zones, and unstablc areas. The EPA's proposed Subtitle D option did not propose 

location restrictions for either new or existing units located in floodplains. 

Under the EPA's proposed Subtitle C option, all CCR landfills and surface impoundments would be 

subject to location restrictions applicable to other subtitle C land-based units, including restrictions 

on placement in fault areas, I OO-year floodplains, salt dome fomlations, salt bed fonnations, 

underground mines and caves. 

i. Do you agree that the Discussion Draft contains requirements similar in nature to the June 

2010 Proposed Rule, please explain. 

The Discussion Draft contains requirements that address a number of the general issues and/or 

facility operations covered by the June 2010 Proposed Rule. Some of the requirements are similar to 

those included in the EPA's June 2010 Proposed Rule. For example. as discussed in the previous 

response, section (c)(2)(B) of the Discussion Draft would require groundwater monitoring for the 

contaminants that were specifically listed in the EPA's 2010 Proposed Rule. 

However, many of the requirements in the Discussion Draft are less specific or detailed. and/or are 

subject to much longer implementation deadlines or none at all. For example, the June 2010 

Proposed Rule would establish specific deadlines by which groundwater remediation (corrective 

action) and risk mitigation activities must occur. Similarly. the June 2010 Proposed Rule established 

specific deadlines for unit closure activities. and the closure of surface impoundments. 

However, we believe any final legislation needs to clearly address: (I) timelines for the 

implementation of state programs; (2) criteria for the EPA to use to determine when a state program 

is deficient. (3) criteria for CCR unit structural integrity, (4) deadlines for closure of unlined or 

leaking units, including inactive or abandoned units, (5) the universe ofCCR disposal units subject 

to a permit program. and (6) groundwater protection standards that address all constituents identified 

in H.R. 2218 that are contained in coal combustion residuals. 

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Q8. Following the incident at Kingston, EPA inspected coal ash impoundments- some 600 - to 

make sure that they are structurally sound. You hired independent contractors who, in the 

Agency's own words, "are experts in the area of dam integrity." 

a. Do you agree with the findings of your staff that not a single coal ash impoundment was 

rated "unsatisfactory" and poses an "immediate safety threat"? 

While it is true that no units were rated unsatisfactory, approximately 25% of the units were rated 

"poor" and either require remedial action. or further critical studies arc needed to identify any 

potential dam safety deficiencies."o The EPA has sent letters to the owners of the surface 

impoundments requesting that the deficiencies be remedied. but there is no law or regulation that 

requires the owners to do so. The owners voluntarily conducted the significant engineering studies to 

demonstrate whether the units were structurally sound and/or significant construction of, for 

example. spillways to direct water overtopping. It is also important to note that these assessments 

were a one-time effort and that a continuous monitoring program is necessary to verify structural 

integrity. Finally, please note that ofthe 144 units that have been rated "poor" to date. 11 were 

classified as high hazard and 69 were classified as significant hazard. meaning that in the event of a 

failure, loss of human life or damage to critical infrastructure is likely to occur. 

b. Do you agree with the findings of your professional staff that the owners of impoundments 

with identified deficiencies have responded responsibly by SUbmitting response action 

plans? If not, please explain your answer. 

Owners and operators have submitted action plans in response to final report recommendations. 

However, we would note that it is the responsibility ofthe owner or operator of the impoundments to 

implement the recommendations in the actions plans. 

Q9. What standard(s) or criteria did/does EPA, or contractors hired by EPA, use to complete 

the Coal Combustion Residuals Impoundment Assessment Reports found at 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys21? Please be specific and 

include any documents provided to EPA personnel or contractors to assist or instruct them in 

conducting the assessments. 

The independent evaluations of the impoundments storing coal combustion residuals were conducted 

using standard, accepted engineering practices, including a visual assessment of the site and each 

impoundment unit; interviews with facility personnel; a review of geotechnical reports and studies 

conducted by the company related to the design. construction. and operation of the units, if available; 

and a review of any past state or federal inspections of the units. While the EPA contractors did not 

conduct any physical drilling, coring, or sampling while on site, they did review studies which may 

have included such information. In developing the criteria for conducting the impoundment 

20 EPA used five categories to rate the units: (i) Satisfactory (no existing or potential management unit safety deficiencies are recognized); (2) 

Acceptable (performance is expected under all applicable loading conditions (static, hydrologic, seismic) in accordance with the applicable 

criteria. Minor maintenance items may be required); (3) Fair (acceptable performance is expected under all required loading conditions (static, 

hydrologic, seismic) in accordance with the applicable safety regulatory criteria; Minor deficiencies may exist that require remedial action and/or 

secondary studies or investigations); (4) Poor (a management unit safety deficiency is recognized for a required loading condition {static, 

hydrologic, seismic) in accordance with the applicable dam safety regulatory criteria; Remedial action is necessary; further criticai studies or 

investigations are needed to identify any potential dam safety deficiencies); and is) Unsatisfactory (conSidered unsafe; dam safety deficiency is 

recognized that require.s immediate or emergency remedial action for problem resolution; reservoir restrictions may be necessary), 

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assessments. a standard rating system was needed to classify units regarding suitability for continued 

safe and reliable operation. The EPA modeled its impoundment condition rating criteria on those 

developed by the State of New Jersey.cl The EPA also required its contractors to assign a hazard 

po:e~tial rating for. eac.h imf',0undme~:. This hazard ?otenti~l classification system is based on 

eXlstmg federal gUidelines. -- In addItIOn. the EPA directed Its contractors to ensure that each 

assessment conforms to the federal guidelines and procedures for dam safety.23 The EPA also 

required its contractors to complete a detailed inspection checklist as means to ensure that similar 

and complete information is collected at each impoundment storing coal combustion residuals. The 

EPA's checklist was generally modeled on a tailings and water impoundment inspection form 

developed by the Mine Safety Health Administration (MSHA). 24 

10. What standard(s) or criteria were nsed to develop the Safety Inspection Reports generated 

as a result of the assessments? 

a. Please describe, in detail, EPA's on-site inspection that was part of the Coal Combustion 

Residuals Impoundment Assessment including what criteria/standards were used to 

determine whether structures at the facilities were well maintained and in good condition, or 

not, at the time of the inspection. 

b. Please describe in detail the criteria/standards used to analyze the integrity of dams and 

dikes at the facilities inspected. 

Response to Questions lOra) and 10(b): As discussed in the response to Question 9, the assessments 

of impoundments containing coal combustion residuals were completed by the EPA contractors who 

are experts in the area of dam integrity. Their assessments reflect the best professional judgement of 

the engineering firm and are signed and stamped by the professional engineer. The reports are based 

on a visual assessment of the site, intervicws with site personnel, and the review of geotechnical 

reports and studies related to the design. construction and operation of those impoundments, if 

available. 

Based upon the information provided in response to Question 9, the EPA required its contractor to 

conduct a field assessment of each impoundment and review and assess all relevant existing data 

concerning: (1) description of impoundment, including location, size, age, design and/or alterations 

to the design, and amount of residuals currently in the unit; (2) settlement; (3) movement; (4) 

erosion; (5) seepage; (6) leakage; (7) cracking; (8) deterioration; (9) seismicity; (10) internal stress 

and hydrostatic pressures in the unit or its foundations or abutments; (11) functioning of foundation 

drains and relief wells; (xii) stability of critical slopes adjacent to the unit; and (12) regional and site 

geological conditions. 

21 New Jersey Department of Environmental Protection, "Guidelines for Inspection of Existing Dams," January 2008. The document can be 

accessed at http://www.nLgov/dep/damsafety/docs/vicguid2.pdL 

n Federal Emergency Management Agency, "Federal Guidelines for Dam Safety: HalClrd Potential Classification System for Dams," April 2004. 

This document can be accessed at http://www.ferc.gov!industries!hydropower!safety/guidelmes/fema-333.pdf. 

n Federal Emergency Management Agency, "Federal Guidelines for Dam Safety," April 2004. This document can be accessed at 

http://www.ferc.gov!industries/hydropower!safety/guidelines!fema-93.pdf. Mine Safety Health Administration, "MSHA Handbook: MSHA Coal 

Mine Impoundment Inspection and Plan Review Handbook," October 2007. This document can be accessed at 

http://www,msha.gov!READROOM!HANDBOOK/PH07-V-1(11CoallmpoundmentlnspectionHandbook.pdf. US Army Corps of Engineers (USACE), 

"Engineering and Design-Slope Stability," October 31, 2003 (~blications.usace,army.mII/Qb!glL~':ni9J}2Leng-manuals IEM J.JJ.Q:1.: 

1902 scc/toc.htlT!), and "Engineering and Design - Earthquake Design and Evaluation for Civil Works Projects," July 31,1995. 

~4 MSHA's checklist can be accessed at http://www.msha.gov/regs!complian/PllS!20D9!PIL09-IV-lattach1.pdf. 

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The EPA's contractors were also required to provide an evaluation of (I) the adequacy of spillways; 

(2) effects of overtopping of the unit; (3) structural adequacy and stability of structures under all 

credible loading conditions; (4) review of static and seismic evaluations used to detennine factors of 

safety; (5) soil, ground water, surface water, geology, and geohydrology characteristics associated 

with the unit, including hydrological data accumulated since the impoundment was constructed or 

last inspected; (6) history of the performance of the management unit through analysis of data from 

monitoring instruments; (7) quality and adequacy of maintenance, surveillance, and methods of unit 

operations for the protection of public safety; (8) location of schools, hospitals or other critical 

infrastructure within five miles down gradient ofthe impoundment; and (9) whether the 

impoundment is locatcd within federally dcsignated flood plains. In addition, the EPA required its 

contractor to evaluate the ability of the impoundment and any spillways to withstand the loading or 

overtopping which may occur from flooding events. 

c. Please describe, in detail, the criteria/standards used to determiue the recommeudatious 

that were part of the Site Assessmeut Reports (or Dam Safety Assessment Reports or any 

other name by which these reports are identified). 

The report recommendations reflect the best professional judgment of the EPA's contractors based 

on the contractor's field observations and assessment of the unit. 

11. Does EPA believe that the MSHA requirements found at 30 CFR Part 77.216 are the 

appropriate standards for: 

a. Inspecting and analyzing the design of impoundments/dams used to manage coal ash? 

Please explain and provide the eitation(s) to the specific requirements EPA believes are 

applicable and explain why. 

Thc EPA believes that the MSHA standards codified undcr 30 eFR 77.216 can reasonably be 

applicd to coal ash impoundments sincc coal slurry impoundments (under MSHA jurisdiction) and 

coal ash disposal impoundments (under the EPA jurisdiction) have many engineering similarities. 

including that both materials arc disposed of in slurry form, both impoundments rely on earthen 

embankments to retain water and slurries. The enginecring design consideration for both types of 

impoundments are essentially the same since engineering risks are similar for such above ground 

earthen embankments. The EPA did not. however. assess the efficiency of liners in these units since 

thc EPA was only assessing the structural stability of the impoundments. The specific MSHA 

requirements applicable to the design and inspection of coal ash impoundments are 30 eFR 77.216-

2(a)(17) which requires certification by a registered enginecr that the design of the impounding 

structure is in accordance with current. prudent engineering practices for the maximum volume of 

water. sediment. or slurry which can be impounded therein; and 30 eFR 77.216-3 which requires 

routine inspections of impoundments and correction of potentially hazardous conditions. 

b. Inspecting and analyzing the construction of impoundments/dams used to manage coal ash? 

Please explain and provide the citation(s) to the specific requirements EPA believes are 

applicable and explain why. 

In its proposal, the EPA adopted 30 eFR 77.216-2(a)(17) which requires certification by a registered 

engineer that the design of the impounding structure is in accordance with current. prudcnt 

engineering practices for the maximum volume of water, sediment. or slurry which can be 

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impounded therein. The EPA believes these requirements are also appropriate for the design and 

construction of coal ash impoundments which are similar to the coal slurry impoundments regulated 

by MSHA in that both types of impoundments impound large volumes of sediments, slurry and 

water. The EPA believes that both types of impoundments should be designed and constructed in 

accordance with current, prudent engineering practices. 

c. Inspecting and analyzing the continued operation and maintenance of impoundments/dams 

used to manage coal ash? Please explain and provide the citation(s) to the specific 

requirements EPA believes are applicable and explain wby. 

In its proposed rule, the EPA adopted 30 CFR 77.216-3 which requires routine inspections of 

impoundments and correction of potentially hazardous conditions. MSHA established this 

requirement so that structural weaknesses in coal slurry impoundments could be identified and 

corrected to prevent catastrophic failures. The EPA believes the MSHA inspection requirements are 

also appropriate to identify structural weaknesses in coal ash impoundments to help prevent 

catastrophic failures similar to the TVA Kingston, Tennessee disaster. 

d. Please explain why an inspection for appearances of structural weakness is necessary at 

intervals not exceeding 7 days? 

The EPA has recognized the similarities between coal slurry impoundments and coal ash 

impoundments. as well as MSHA's nearly 40 years of experience regulating the design, construction 

and inspection of coal slurry impoundments. MSHA inspection requirements found at 30 CFR 

77.216-3 require that all water, sediment, or slurry impoundments be examined at intervals not 

exceeding seven days (or as otherwisc approved by the District Manager) for appearances of 

structural weakness and other hazardous conditions. As MSHA's Engineering and Design Manual 

for Coal Refuse Disposal Facilities states: "Routine inspections during operation ofthe facility allow 

for the identification of potential problems and resolution in a timely fashion." MSHA's regulations 

have prevented catastrophic failures of coal slurry impoundments since the regulations were 

promulgated. The EPA believes the MSHA inspection requirements are appropriate for coal ash 

impoundments. 

e. Wbat about tbe Federal Dam Safety Guidelines publisbed by FEMA - does EPA believe 

tbat tbese req uirements may be appropriate standards/criteria for analyzing design of 

impoundments/dams used to manage coal ash? For analyzing construction of 

impoundments/dams used to manage coal ash? For analyzing continued operation and 

maintenance ofimpoundments/dams used to manage coal ash? 

The EPA also evaluated the Federal Guidelines for Dam Safety (Guidelines) published by FEMA. 

While the Guidelines encourage strict safety standards in the practices and procedures employed by 

the federal agencies or required of dam owners regulated by the federal agencies, they do not 

establish technical standards. The EPA believes the technical standards found in the MSHA 

regulations are more appropriate for the design, construction, operation, and maintenance of 

impoundments used to manage coal ash. 

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12. Does the Discussion Draft allow EPA to find a State Program deficient if the program does 

not meet the minimum requirements? 

Section (d) of the Discussion Draft does not authorize the EPA to find a State program deficient at 

the time of the initial certification for any reason, including if the program does not meet the 

minimum requirements. 

Section (d) does authorize the EPA to issue a notice of deficiency if the state is not implementing a 

permit program that meets the specification in subsection (c). However, to support a determination 

under 4011 (d)(I)(D), the EPA would likely need to undertake a fact-specific examination of the 

state's implementation of its CCR program, including an evaluation of the state's individual 

permitting decisions and enforcement of the CCR program. We believe the cvaluation would need to 

consider the overall implcmentation of the state's CCR program, and that one or two individual 

permit decisions or enforcement actions would not be sufficient to consider the state's program 

deficient. Further, taking action under this provision would be complicated by the fact that the 

regulations incorporated into the criteria allow states to establish regulatory alternatives or 

potentially to waive certain requirements. 

a. Does the Discussion Draft allow EPA to take over a State permit program if the State does 

not correct identified deficiencies? 

Subsection (e)(l)(8) authorizes the EPA to implement a CCR permit program if the state has failed 

to remedy identified deficiencies, It does not appear, however, that the Discussion Draft authorizes 

the EPA to implement a state permit program. Subsection (e)(4) restricts the EPA to implement and 

enforce only "the requirements of [the bill]," Thus, to the extent the state program varied from the 

minimum requirements of the Discussion Draft (e.g., was more stringent), the EPA does not appear 

to be authorized to implement or enforce such state requirements. 

h. What criteria would EPA need to determine whether a State permit program is deficient? 

Generally, where a state permit program does not meet the goals and requirements of the statute, that 

pennit program could be considered deficient. Criteria Jor making this determination could include, 

for example: failure to issue penn its; repeated issuance of permits that do not conform to the 

requirements of the statute; failure to comply with public participation; and lack ofan adequate 

enforcement and compliance program. See also 40 CFR 271.22 for the EPA's criteria for 

withdrawing the subtitle C program and 40 CFR 239 for the criteria and procedures the EPA uses to 

review state Subtitle D programs prior to implementation and to withdraw determinations of 

adequacy after program implementation. 

13. Does the Discussion Draft address the fnll volnme of liquid to he stored in an 

impoundment? 

Yes, Section 4011 (c)(I)(8)(i)(I) appears to require that an independent registered professional 

engineer certify that a coal com bustion residuals unit be designed in accordance with recognized and 

generally accepted engineering practices for "containment of the maximum volume of coal 

combustion residuals and liquids appropriate for the structure." Section (c)(I)(8) also requires 

inspections by an independent registered professional engineer at least annually to assure that the 

"". design, operation, and maintenance of surface impoundments are in accordance with recognized 

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and generally accepted good engineering practices for containment of the maximum volume of coal 

combustion residuals and liquids which can be impounded ... " 

Rep. Bill Cassidy 

1. Coal fly ash has been nsed successfnlly for years in bnilding materials and as fill material 

for roads without any negative incidents occurring. Over the last few years, the Obama 

Administration has heen pursuing a strategy to declare it hazardous, having an adverse impact 

on our road and home building indnstries. Is this just another step in the life cycle of 

harassment of coal and domestic energy by the Obama Administration? The Administration is 

delaying Army Corps f Engineers permits for sites of coal mines, pushing new regulations on 

the mining of coal through their stream buffer zone and mine dust regulations, trying to stop 

the use of coal by the utilities through air regulations, and now it is trying to declare the waste 

product hazardous. The Obama Administration lacks the authority to outright make coal 

illegal so they are attacking the entire life cycle through regulations. This will cost American 

jobs; by the cost of energy and the materials made from coal ash byproducts. 

The EPA proposed to maintain the Bevill exemption for "beneficially used" CCRs. The EPA 

proposed this approach in recognition ofthe fact that some uses ofCCRs. such as encapsulated uses 

in concrete, and use as an ingredient in the manufacture of wallboard, provide benefits and raise 

minimal health or environmental concerns. The EPA continues to believe that the beneficial use of 

CCRs. when perfonned properly and in an environmentally sound manncr. is the environmentally 

preferable outcome for CCRs. 

On the other hand, unencapsulated uses have raised concerns and merit closer attention. For 

example. the placement ofunencpasulated CCRs on the land. such as in road embankments or in 

agricultural uses. presents a set of issues that may pose similar concerns as those that caused the 

agency to propose to regulate CCRs destined for disposal. This includes the discovery of seven 

proven damage cases. involving the large-scale placement, akin to disposal. of CCRs, which 

occurred under the guise of "beneficial use." See 75 Fed Reg at 35146-148. 

Rep. Henry Waxman 

During a hearing in the Environment and the Economy Subcommittee in February on the role 

of States in protecting the environment, witnesses suggested that giving EPA the ability to take 

over a state permit program if it is deficient would constitute backstop enforcement authority. 

Such a significant step would go well beyond enforcing against a particular facility. 

1. What is the process for taking control of existing state permit programs under RCRA? 

With respect to RCRA Subtitle C, section 3006(e) and the EPA's regulations (40 CFR 271.23) 

establish the process for withdrawing authorization of state programs. The EPA regulations provide 

that the EPA may initiate withdrawal of an authorized state hazardous waste program on its own 

initiative or in response to a petition. and may conduct an informal investigation. The process 

requires a public hearing (under the regulations, a formal evidentiary hearing). If, after the hearing. 

the EPA Administrator decides that the state program has not been administered in conformity with 

the statute and regulations. the EPA must notify the state and list the program deficiencies. The 

Administrator must provide the statc up to 90 days to correct the deficiencies, and if they are not 

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corrected, the Administrator will issue an order withdrawing the state program. Upon withdrawal of 

the state hazardous waste program, the state's hazardous waste regulations would no longer apply in 

lieu of the EPA's federal RCRA regulations, and the EPA would take over from the state the role of 

issuing RCRA Subtitle C permits to treatment, storage, and disposal facilities. 

Under RCRA Subtitle D, section 4005(c), the EPA only approves state permit programs for two 

categories of non-hazardous waste disposal facilities - municipal solid waste landfills (MSWLFs) 

and those units that receive conditionally-exempt small quantity generator waste (CESQG facilities). 

Under EPA's Subtitle D permit program approval regulations, the EPA may initiate a withdrawal of 

an adequacy determination when it has reason to believe that a state program is no longer adequate, 

or the state no longer has adequate authority to administer and enforce such a program. See 40 

C.F.R. 239.13. After notification by the EPA, the state has the oppOltunity first, to demonstrate to 

the EPA that its program continues to comply with the EPA's regulations, and second, to correct any 

deficiencies identified by the EPA. If this is not sufficient, the EPA can then publish a proposed 

withdrawal of adequacy in the Federal Register atTording public comment, and the EPA may also 

conduct a public hearing. The EPA will thereafter publish its final decision and respond to 

significant comments. States can reapply for approval at any time after a determination of 

inadequacy. 

It is important to note that tinding a state permit program inadequate under RCRA Subtitle D, 

section 4005(c) has a different effect than withdrawing authorization ofa state's Subtitle C program. 

A finding that a state permit program is inadequate under RCRA Subtitle D, section 4005(c) only 

authorizes the EPA to enforce the EPA's subtitle D MSWLF and CESQG regulations. The EPA 

does not assume implementation oflhe state program. Under RCRA Subtitle D, the EPA does not 

issue permits to solid (i.e., non-hazardous) waste disposal facilities, even in unapproved states; state 

laws do not operate in lieu of the federal RCRA regulations. 

There is an additional implication to such a determination, the federal MSWLF and CESQG facility 

regulations provide more flexible standards to facilities in approved states. Thus, the EPA's 

withdrawal of approval ofa state permit program under RCRA Subtitle D, section 4005(c) would 

have the effect of requiring MSWLF/CESQG facilities to comply with the more-prescriptive 

standards in the EPA's regulations and subject those facilities to the EPA enforcement if they violate 

the federal regulations. However, the facilities would still remain subject to state permitting and 

othcr state law. 

2. How often does EPA take the dramatic action of taking control of a state permit program 

under RCRA? 

To our knowledge, the EPA has never withdrawn authorization for a state permit program under 

subtitle C, nor initiated the formal procedures to disapprove (or make a determination of deficiency 

for) an approved state's municipal solid waste program under 40 crR 239.13. 

3. How does tbe process outlined in tbe discussion draft for taking control of a state coal 

combustion residual permit program compare to the process for taking control of existing 

state programs? 

Unlike the process for withdrawing authorization under RCRA section 3006( e), the Discussion Draft 

does not require a public hearing. Section 40 II (d)( I) requires that the EPA first provide the state 

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with written notice that details the deficiencies in the state's implementation of the CCR permit 

program, and grant the state an opportunity to remedy the deficiencies. In addition, subparagraph 

(d)(l)(B) requires the EPA to establish a deadline by which the deficiencies must be remedied "in 

collaboration with the state," and that is at least six months from the date of the notification. By 

contrast, RCRA section 3006(c) establishes a 90-day deadline for the state to remedy deficiencies. 

The Discussion Draft also grants states the right to judicial review in the DC Circuit pursuant to 

RCRA 7006(a). 

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ROBERT J. MARTINEAU, JR. 

COMMISSIONER 

May 13.2013 

STATE OF TENNESSEE 

DEPARTMENT OF ENVIRONMENT AND CONSERVATION 

NASHVILLE, TENNESSEE 37243-0435 

Via First Class Mail and Electronic Mail to Nick.Abraham'a1mail.house.gov 

The Honorable John Shimkus cia Nick Abraham. Legislative Clerk 

Committee of Energy and Commerce 

1I0use of Representatives 

One Hundred Thirteenth Congress of the United States 

2 I 25 Rayburn House Office Building 

Washington. DC 20515-6115 

Dear Chairman Shimkus. 

BILL HASLAM 

GOVERNOR 

This letter responds to your request of April 29. 2013. which included additional questions from 

Members pertaining to my testimony on behalf oflhe Environmental Council of the States (ECOS) 

at the Thursday. April 11.2013 hearing on a discussion draft entitled "The Coal Ash Recycling and 

Oversight Act of2013." Attached please find the questions and my responses. Thank you again for 

the opportunity to testify before the Subcommittee on this important topic. 

Please feel free to contact me should you have any additional questions. 

Sincerely, 

Robert J. Martineau. Jr. 

Commissioner 

Secretary~ Treasurer 

Environmental Council of the States 

Attachment 
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82182.139

Commissioner Robert J. Martineau, Response to Questions 

1. The Honorable John Shimkus Questions 

a. Do you think that State officials are in the best position to determine the specifics 

regarding dam design and construction? Please explain. 

Yes. The primary reason is that states have been regulating dam safety for decades. with a few 

exceptions such as hydro-powered dams. States have had a long time to develop regulations for 

dams. and many states use guidance by federal agencies such as FEMA to help set state standards. 

It's important to remember that dam design and construction. in general, encompasses and raises 

issues well beyond coal ash regulation. States are in the best position to know about and understand 

the unique circumstances that may be at play with regard to dam structures, including surface 

impoundments that receive Coal Combustion Residuals (CCR) in their own state. 

b. The incident at Kingston precipitated the Discussion Draft and the Proposed 

Rule- can you give us a summary of the lessons learned and what Tennessee 

Department of Environment and Conservation has done in the wake of 

Kingston? 

Summary oflessons learned: 

• CCR does not present a long-term toxicological threat to public health and the environment 

when managed properly. The most significant threat to humans is when ash particles become 

airborn, presenting inhalation and skin irritation problems for people who are exposed to it; 

• CCR surface impoundments and landfills should be sited, designed. and constructed similar 

to RCRA Subtitle 0 Landfills and should have regular inspections to allow compliance 

issues identified to be addressed quickly; 

• Existing CCR surface impoundments and landfills should be evaluated for structural stability 

and integrity. Structural deficiencies should be corrected and there should be consideration 

of closing those structures, with the most problematic structures closed first; and 

• CCR can and should be managed as a solid waste. It can be beneficially reused and the cost 

to regulate as a hazardous waste is approximately ten times greater than regulation as a solid 

waste. There is not enough hazardous waste disposal space for the amount of material 

generated. 

TVA had engineering companies search for the cause of the Kingston failure. TDEC staff and TDEC 

consultants reviewed the information produced. Thc TVA report discussed two reasons for failure: 

A slime layer between the bottom of the ash pile (about 90% fly ash and 10% bottom ash) 

and the top of the subsurface native material; and 

• The landfill did not drain properly causing the ash to have a greater than expected level of 

water content. 

As a part ofTDEC's effort to determine the cause of the TVA Kingston ash release, an Advisory 

Board was convened to review TVA's root cause investigation to determine whether sound 

engineering principles were used in construction of the landfill; to review TV A's structural 

evaluations of other TV A facilities in Tennessee to ensure the use of sound engineering principles; 

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and to provide recommendations to TDEC for the future safe management of coal ash. The 

Advisory Board consisted of members from TDEC. EPA, the University of Tennessee engineering 

department, and Benham Consultants. 

The root cause investigation that TV A commissioned concluded that four factors contributed to the 

dredge cell failure: 

• The geometry and setbacks utilized in the placement of the wet ash; 

Increased loads due to higher fill; 

Unusually weak silt/ash slime foundation; and 

• Hydraulically placed loose wet ash. 

Tennessee's Advisory Board did not specifically agree or disagree with these conclusions. The 

Board concluded there was a lack of coordinated engineering design for raising the dredge cells over 

a period of decades and the properties of the coal ash were not adequately understood. 

From TDEC's perspective, the most significant factor was the method of construction known as a 

dredge cell and the weak material properties of the ash used for construction. Loosely deposited 

sluiced fly ash, without the benefit of secondary consolidation. has been shown to perform in a 

manner more consistent with that of unconsolidated loose sand and silt. In addition, the weakness of 

the foundation beneath the dredge cells was a significant factor which contributed to the failure. 

Once the structural integrity ofthe landfill was compromised and the breach occurred at the north 

boundary of the landfill. the disposed ash was released. Because the ash in the landfill had a high 

moisture content, the ash behaved as a liquid and quickly spread across a large area covering the 

land surface in the immediate area and entering the Emory River and its tributaries. The effect was 

similar to pouring out a bucket of very thin cement mix; basically the released ash spread widely due 

to the amount of "wet" ash and the height of the landfill. The released ash followed the laws of 

gravity and moved to into the lowcst surrounding areas. 

i. Has the State analyzed the structural integrity of other disposal units 

and/or added additional requirements to the existing regulations? 

TDEC issued (wo Commissioner's Orders to TVA after the Kingston incident. The first order 

required TVA to take immediate action to begin clean-up of the problems caused by the failure. The 

second order required TV A to investigate the structural integrity of the six other coal ash storage 

areas. both landfills and surface impoundments. TVA hired an environmental consulting company 

specializing in evaluating the structural stability of landfills and surface impoundments. TDEC and 

EPA approved of the approach taken by TV A to evaluate these structures. EPA also worked with the 

federal Bureau of Mines and used their expertise to assist with the structural stability analysis. 

All parties agreed that a "dam safety factor" of 1.5 should be the standard for structural integrity for 

these structures. TV A found deficiencies at some of its facilities. TVA took actions to improve the 

structural stability ofthe surface impoundments and landfills that did not meet the 1.5 dam safety 

factor. The TV A Johnsonville surface impoundment was tbe coal ash storage facility that required 

the most extensive repair. While the TDEC Order required TV A to complete this work for all TV A 

surface impoundments and landfills in Tennessee, TVA did perform the analyses for its facilities in 

all states. 

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Since the TVA Kingston ash release, TDEC requires that any CCR waste that is to be disposed of in 

an existing Tennessee landfill be disposed of as a special waste, the landfill must have a synthetic 

liner and leachate collection system and TDEC and the landfill operator must agree to take the 

waste. Any new landfill or expansion of an existing landfill that will receive CCR waste must meet 

our Class II Industrial Waste Landfill requirements and standards which includes a geologic 

assessment, geologic buffer, synthetic liner, a leachate collection system, operations manual, closure 

plan, post closure plan and ground water monitoring. This is same criteria as a RCRA Subtitle D 

landfill, however, the Commissioner, may waive some permit requirements if the requirement does 

not provide additional public health and environmental protection. 

In 2009, Tennessee amended the Tennessee Solid Waste Management Act so that it now requires 

any new landfill or any expansion of an existing landfill to have a synthetic liner and an approved 

"cap" before the landfill is closed. 

TDEC has not made further changes to its regulation ofCCRs, choosing to wait until EPA issues a 

final rule to make any additional changes. TDEC believes the changes it has made in policy and 

statute (as stated above) provide a greater level of public health and environmental protection than 

before the TVA Kingston ash release. 

c. As a regulatory ofticial, how do you define backstop authority? Does the 

Discussion Draft have a federal backstop? 

When discussing the state operation of a delegated federal program, the federal role is usually 

reduced in favor of the day-to-day operations of the program at the state level. Federal programs set 

minimum standards states must adopt to become a delegated program and establish a minimum 

"level playing field" among the states. Also, there are times when complex, technical issues such as 

on a particular enforcement case can overwhelm a single state's ability to respond. For these 

reasons, states believe that a federal backstop is a necessary and useful presence. The Discussion 

Draft we addressed at the hearing provides what we would define as backstop authority in at least 

three ways: (1) EPA will operate the program in the event a state chooses not to; (2) EPA will 

conduct oversight of state programs and can, if necessary, assume control of the state program if the 

state cannot or will not operate it consistent with the goals of the legislation; and (3) EPA can assist 

the states with enforcement and/or technical assistance at a state's request. 

2, The Honorable Henry A. Waxman Questions 

NOTE: Many of the following questions address existing TVAfacilities. TVA has committed to 

close existing CCR impoundments through a conversion to dry ash management. As TVA's National 

Pollutant Discharge Elimination System (NPDES) permits are renewed, TDEC has or will include a 

requirementfor ash pond closure plans to address the transition from a coal ash wastewater scI/ling 

pond to a closed dry storagefacility. Joint review and approval of the closure plans occurs between 

the TDEC Divisions of Solid Waste Management and Water Resources, which is the NPDES 

permiffing authority. 

Ash pond closure plans address the TVA process of conversion to a dlyash handling system and 

include a post-closure plan with a groundwater monitoring plan. The plan and NPDESpennit 

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include continuing dike inspections fa address dike safety and safe dams issues. Presently, TDEC 

has approved TVA Ash Pond Closure Plans/or Bull Run and Johnsonville Fossil plants. The Ash 

Pond Closure Plan/or the Gallatin Fossil plant is under review. TVA has no1 yet submilled Ash 

Pond Closure Plans/or Kingston, Cumberland, and Allen Fossil plans because the NPDES permits 

hm'e not been re-issued. 

According to pollution monitoring conducted by the Tennessee Valley Authority (TVA) and 

released under the Freedom of Information Act, levels of arsenic, boron, and manganese at the 

Tennessee Valley Authority Allen Fossil Plant in Memphis, Tennessee, have exceeded the 

Maximum Contaminant Level, the EPA child health advisory, and the EPA lifetime health 

advisory respectively. Additionally, monitoring for those and other pollutants appears to have 

been infrequent. 

a. What action is your Department taking or will your Department commit to take to 

containing this contamination, and what is your timeline for doing so? 

The Allen Fossil plant (ALF) has no permitted landfill regulated under the Tennessee Solid Waste 

Disposal Act, but has a wastewater impoundment with a NPDES permit. TDEC understands TVA is 

currently evaluating the future operational status of ALF. The NPDES permit renewal for ALF 

remains under review. TDEC intends to include, in the renewed penn it. a permit requirement for an 

Ash Pond Closure Plan, which will include a groundwater monitoring plan that includes the location 

of the groundwater monitoring wells, chemical constituents to be monitored and the frequency of the 

monitoring. TVA has historically installed groundwater monitoring at ALI' on a voluntary basis. 

b. What action is your Department taking or will your Department commit to take to 

assess and clean up this contamination, and what is your timeline for doing so? 

If the groundwater monitoring indicates chemical constituents above background levels, TVA would 

conduct groundwater assessment monitoring to determine whether an environmental release has 

occurred. If a chemical constituent statistically exceeds the Groundwater Protection Standard (e.g., 

the Maximum Contaminant Level (MCL)for drinking water), TVA is required to begin an 

environmental investigation and conduct environmental remediation to resolve the problem. An 

environmental cleanup would take into consideration the level and extent of soil and groundwater 

contamination, the site conditions and the exposure hazards to local citizens and the environment. 

c. What action will your Department take to ensure that monitoring of these wells in 

the future is adequate so that any future contamination is detected and addressed? 

As noted above. TDEC intends to include a requirement for an Ash Pond Closure Plan in the 

renewed NPDES permit, which includes continued groundwater monitoring pending ash pond 

closure. Post-pond closure, long-term monitoring will continue under provisions of the Tennessee 

Solid Waste Disposal Act. 

At the TVA Bull Run Fossil Plant near Oak Ridge, Tennessee, monitoring has found high 

levels of arsenic, boron, cobalt, manganese, molybdenum, and sulfate. Rising levels of boron 

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and molybdenum were documented for some time, but TVA has since stopped monitoring for 

those pollutants. 

a. What action is your Department taking or will your Department commit to take to 

containing this contamination, and what is your timeline for doing so? 

The Bull Run Fossil plant has both a pennitted fly ash landfill regulated under the Tennessee Solid 

Waste Disposal Act and a wastewater impoundment with a NPDES permit. Under the NPDES 

permit for ash pond discharges, TDEC has approved the TVA 2011 Ash Pond Closure Plan, which 

includes a groundwater monitoring plan that has the location of the groundwater monitoring wells. 

chemical constituents to be monitored and the frequency of the monitoring. The chemical cleaning 

pond has been closed. Fly ash is currently managed in a dry ash landfill. To complete conversion to 

dry ash handling, bottom ash and gypsum dewatering projects are scheduled for completion during 

2015. To address ash pond stability. TVA completed, in 2013, the dike remediation at the ash pond 

and dry fly ash stack, including the ash pond spillway modification and a 7200 ft shoreline 

stabilization. 

b. What action is your Department taking or will your Department commit to take to 

assess and clean up this contamination, and what is your timeline for doing so? 

Pursuant to the Tennessee Solid Waste Disposal Act. the landfill is monitored by a groundwater 

monitoring program with a sampling plan that stipulates the chemical constituents to be monitored 

and the frequency of monitoring that is the equivalent to RCRA Subtitle D requirements. The 

landfill is currently in assessment monitoring, which means ground water results have indicated 

constituents above background levels. The Groundwater Protection Standard (e.g., the MCL) has 

not been exceeded. If a chemical constituent statistically exceeds the Groundwater Protection 

Standard (e.g., the MCL for drinking water), TVA is required to begin an environmental 

investigation and conduct environmental remediation to resolve the problem. An environmental 

cleanup would take into consideration the level and extent of soil and groundwater contamination, 

the site conditions and the exposure hazards to local citizens and the environment. TVA has 

historically installed groundwater monitoring at the impoundment on a voluntary basis. 

As noted above, TDEC has approved the TVA 2011 Ash Pond Closure Plan, which includes a 

groundwater monitoring plan that has the location of the groundwater monitoring wells. chemical 

constituents to be monitored and the frequency of the monitoring. If the groundwater monitoring 

indicates chemical constituents abovc background levels. TVA would conduct groundwater 

assessment monitoring to detennine whether an environmental release has occurred. If a chemical 

constituent statistically exceeds the Groundwater Protection Standard (e.g .• the MCL for drinking 

water), TVA is required to begin an environmental investigation and conduct environmental 

remediation to resolve the problem. An environmental cleanup would take into consideration the 

level and extent of soil and groundwater contamination, the site conditions and the exposure hazards 

to local citizens and the environment. 

What action will your Department take to ensure that monitoring of these wells in the future is 

adequate so that any future contamination is detected and addressed? 

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82182.144

The landfill penn it requires 30 years of post-closure care and monitoring. If a Groundwater 

Protection Standard is exceeded, the process described above would occur. Current NPDES permit 

requirements include continued groundwater monitoring pending ash pond closure. After ash pond 

closure, long tenn monitoring will continue under provisions of the Tennessee Solid Waste Disposal 

Act. 

At the TVA Cumberland Fossil Plant in Cumberland City, Tennessee, monitoring has found 

high levels of arsenic, boron, cobalt, manganese, molybdenum and sulfate. Cobalt levels have 

been documented as high as ten times the Regional Screening Level and manganese levels have 

been documented as high as 100 times the health advisory level. 

a. What action is your Department taking or wiII your Department commit to take to 

containing this contamination, and what is your timeline for doing so? 

The Cumberland Fossil plant (CUF) has both a permitted landfill regulated under the Tennessee 

Solid Waste Disposal Act and a wastewater impoundment with a NPDES permit. The NPDES 

permit renewal for CUF remains under review. TDEC intends to include, in the renewed permit, a 

permit requirement for an Ash Pond Closure Plan, which will include a groundwater monitoring plan 

that includes the location of the groundwater monitoring wells, chemical constituents to be 

monitored and the frequency of the monitoring. TVA has historically installed groundwater 

monitoring at the impoundment on a voluntary basis. Fly ash is currently managed in a dry ash 

landfill. To complete conversion to dry ash handling, bottom ash and gypsum dewatering projects 

are scheduled for completion during 2020, according to TVA. To address ash pond dike stability, 

TVA is nearing completion, in 2013, for the remediation of the gypsum/dry stake dikes and stilling 

pond spillway replacement. 

b. What action is your Department taking or wiII your Department commit to take to 

assess and clean up this contamination and what is your timeline for doing so? 

Pursuant to the Tennessee Solid Waste Disposal Act, the landfill is monitored by a groundwater 

monitoring program with a sampling plan that stipulates the chemical constituents to be monitored 

and the frequency of monitoring that is the equivalent to RCRA Subtitle D requirements. The 

landfill is currently in assessment monitoring, which means ground water results have indicated 

constituents above background levels. The MCl has occasionally been exceeded; however, required 

analysis has demonstrated it has not been exceeded statistically. If a chemical constituent 

statistically exceeds the Groundwater Protection Standard (e.g., the Maximum Contaminant level 

for drinking water), the permit requires TV A to begin an environmental investigation and conduct 

environmental remediation to resolve the problem. An environmental cleanup would take into 

consideration the level and extent of soil and groundwater contamination, the site conditions and the 

exposure hazards to local citizens and the environment. 

F or the impoundment, as noted above, TDEC intends to include the requirement for an Ash Pond 

Closure Plan, which includes a groundwater monitoring plan that has the location of the groundwater 

monitoring wells, chemical constituents to bc monitored and the frequency of the monitoring. If the 

groundwater monitoring indicates chemical constituents above background levels, TVA would 

conduct groundwater assessment monitoring to determine whether an environmental release has 

occurred. Ira chemical constituent statistically exceeds the Groundwater Protection Standard (e.g., 

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the MCL for drinking water), TV A is required to begin an environmental investigation and conduct 

environmental remediation to resolve tbe problem. An environmental cleanup would take into 

consideration the level and extent of soil and groundwater contam ination, the site conditions and the 

exposure hazards to local citizens and the environment. 

c. What action will your Department take to ensure that monitoring of these wells in 

the future is adequate so that any future contamination is detected and addressed? 

The landfill penn it requires 30 years of post-closure care and monitoring and the above noted 

processes depending on the level of constituent detection. With regard to the impoundment, TDEC 

intends to include the NPDES requirement for an Ash Pond Closure Plan. which includes 

groundwater monitoring pending ash pond closure. After pond closure, long term monitoring will 

continue under provisions under the Tennessee Solid Waste Disposal Act. 

At the TVA Gallatin Fossil Plant in Gallatin, Tennessee, monitoring around an abandoned ash 

pond has shown contamination with aluminum, beryllium, boron, cobalt, manganese, 

mercury, nickel, and sulfate. 

a. What action is your Department taking or will your Department commit to take to 

containing this contamination, and what is your timeline for doing so? 

The Gallatin Fossil plant has both a non-registered, closed impoundment (referred to in the questions 

as an "abandoned ash pond") and a wastewater impoundment with a NPDES permit. The closed 

impoundment has not operated since the 1970s and contains sluiced coal ash. Under the NPDES 

permit for ash pond discharges, TDEC is reviewing TVA's 2012 Ash Pond Closure Plan, which 

includes groundwater monitoring for the active ash pond area only. To complete conversion to dry 

ash handling, TVA has scheduled fly ash and gypsum projects (using a dry scrubber) for completion 

in 2017. Conversion of bottom ash to dry handling is proposed during 2019. To address ash pond 

dike stability, TVA proposes dike remediation and a spillway upgrade stabilization for completion 

during 2015. 

b. Are the Department's authorities the same with respect to abandoned ash disposal 

sites as they are for active disposal sites? If not, how do they differ? 

"Abandoned ash disposal sites" were never issued a pennit under the Tennessee Solid Waste 

Disposal Act, but come under the provisions of the Act as unregistered disposal sites. Therefore, 

TDEC has the authority to require environmental investigation and clean-up pursuant to the Solid 

Waste Disposal Act. TV A has voluntarily installed groundwater monitoring at this site. TVA 

samples twice per year and submits the results to TDEC's Solid Waste Division. The monitoring is 

similar to the requirements for groundwater monitoring required at permitted Class I and II landfills. 

c. What action is your Department taking or will your Department commit to take to 

assess and clean up this contamination, and what is your timeline for doing so? 

For the active impoundment. as noted above, TDEC is reviewing the Ash Pond Closure Plan, which 

includes a groundwater monitoring plan that has the location of the groundwater monitoring wells, 

chemical constituents to be monitored and the frequency of the monitoring. If the groundwater 

8 
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82182.146

monitoring indicates chemical constituents above background levels, TVA would conduct 

groundwater assessment monitoring to determine whether an environmental release has occurred. If 

a chemical constituent statistically exceeds the Groundwater Protection Standard (e.g., the MCL for 

drinking water), TVA is required to begin an environmental investigation and conduct 

environmental remediation to resolve the problem. An environmental cleanup would take into 

consideration the level and extent of soil and groundwater contamination. the site conditions and the 

exposure hazards to local citizens and the environment. The same process would apply to the 

unregistered, closed impoundment. The current well network for the unregistered, closed 

impoundment is the equivalent of assessment monitoring, which means constituents have been 

detected above background levels. 

d. What action will your Department take to ensure that monitoring of these wells in 

the future is adequate so that any future contamination is detected and addressed? 

With regard to the impoundment. TDEC is reviewing TVA's Ash Pond Closure Plan, which includes 

groundwater monitoring pending ash pond closure. After pond closure, long term monitoring will 

continue under provisions under the Tennessee Solid Waste Disposal Act. 

At the TVA Johnsonville Fossil Plant in Waverly, Tennessee, monitoring at an active ash 

disposal site has shown contamination with boron, cobalt, manganese, and sulfate. The same 

contaminants have been show in monitoring of a closed disposal site, with cobalt levels as high 

as ten times the Regional Screening Level. Another closed Disposal at the plant is not 

monitored. 

a. What action is your Department taking or will your Department commit to take to 

containing this contamination, and what is your timeline for doing so? 

According to TVA, the Johnsonville Fossil plant will be retired by 2017. The plant has two 

unregistered disposal sites and a permitted landfill, which is regulated under the Tennessee Solid 

Waste Disposal Act. The plant also has a wastewater impoundment with a NPDES permit. Both the 

unregistered disposal sites and the landfill are closed. One of the unregistered disposal sites has a 

monitoring system in place and TDEC understands TVA is developing one for the other. Under the 

NPDES permit for ash pond discharges, TDEC has approved TVA's 2011 Ash Pond Closure Plan, 

which includes groundwater monitoring. The chemical cleaning pond has been closed. To address 

ash pond dike stability, TVA completed dike remediation at the ash disposal area 2 and the 

causeway buttress in 2013. 

b. Are the Department's authorities the same with respect to abandoned ash disposal 

sites as they are for active disposal sites? If not, how do they differ? 

See the answer above for the same question with regard to the Gallatin Fossil plant. 

c. What action is your Department taking or will your Departmcnt commit to take to 

assess and clean up this contamination, and what is your timeline for doing so? 

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82182.147

Pursuant to the Tennessee Solid Waste Disposal Act, the landfill is monitored by a groundwater 

monitoring program with a sampling plan that stipulates the chemical constituents to be monitored 

and the frequency of monitoring that is the equivalent to RCRA Subtitle D requirements. The 

landfill is currently in assessment monitoring, which means ground water results have indicated 

constituents above background levels. If a chemical constituent statistically exceeds the 

Groundwater Protection Standard (e.g., the MCL for drinking water), TVA is required to begin an 

environmental investigation and conduct environmental remediation to resolve the problem. An 

environmental cleanup would take into consideration the level and extent of soil and groundwater 

contamination, the site conditions and the exposure hazards to local citizens and the environment. 

The process for the unregistered sites would be the same, although one does not currently have 

monitoring. 

For the impoundment, as noted above, TDEC has approved the Ash Pond Closure Plan, which 

includes a groundwater monitoring plan that has the location of the groundwater monitoring wells. 

chemical constituents to be monitored and the frequency of the monitoring. If the groundwater 

monitoring indicates chemical constituents above background levels, TVA would conduct 

groundwater assessment monitoring to determine whether an environmental release has occurred. If 

a chemical constituent statistically exceeds the Groundwater Protection Standard (e.g., the MCL for 

drinking water), TV A is required to begin an environmental investigation and conduct 

environmental remediation to resolve the problem. An environmental cleanup would take into 

consideration the level and extent of soil and groundwater contamination, the site conditions and the 

exposure hazards to local citizens and the environment. 

d. What action will your Department take to ensure that monitoring of these wells in 

the future is adequate so that any future contamination is detected and addressed? 

The landfill penn it requires 30 years of post-closure care and monitoring. Current NPDES permit 

requirements include continued groundwater monitoring pending ash pond closure. After pond 

closure, long term monitoring will continue under provisions of the Tennessee Solid Waste Disposal 

Act. 

At the Kingston Fossil Plant, site of the 2008 catastrophic impoundment failure, monitoring 

continues to show contamination with cobalt, manganese, and selenium. 

a. What action bas your Department taken to address the root causes of the 2008 

failure? 

See answer to question l.b in response to a question posed by the Honorable John Shimkus above. 

b. Wbat action has your Department taken to address ongoing contamination at the 

site? 

TDEC, EPA and TVA analyzed the TVA Kingston ash to determine ifit should be managed as a 

hazardous waste. Ash was analyzed for metals, polynuclear aromatic hydrocarbons, radioactive 

substances and other chemicals constituents. Samples were analyzed for total amounts in the ash and 

using the EPA Toxicity Characteristic Leaching Procedure. None of the samples analyzed had levels 

of chemical constituents that would classify the ash as a hazardous waste. TDEC recognizes that the 

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ash is exempted as a hazardous waste currently under the Bevill Amendment; however, even if the 

Bevill amendment was not in place, the ash did not meet any of the characteristics ofa hazardous 

waste under RCRA Subtitle C. 

Over 90% of the ash that entered the Emory River and its tributaries (more than 3.5 million yd3) has 

been removed and disposed. EPA, TVA and TDEC are determining whether it is appropriate to 

remove the remaining ash given the impact the removal will have on fish and aquatic life. The ash 

remaining in the river does not present a toxicity hazard to fish and aquatic life. The impact ofthe 

ash release when it first occurred was primarily to "smother" fish and aquatic mechanisms. 

Currently, TVA is preparing an on-site CERCLA disposal cell that will be used to dispose of the 

remaining ash on the land surface. The remaining ash, more than 2 million yd3

, will be placed in a 

structurally reinforced disposal cell. The disposal cell will include a subsurface perimeter wall that is 

approximately 30 ft wide and ranges from 30 to 70 feet in depth. The purpose of the subsurface wall 

is to ensure there are no further releases due to seismic activity. The CERCLA cell will have a 

synthetic liner at the surface to prevent migration of surface water into the ash disposal cell as well 

as a standard Subtitle D Municipal Solid Waste Landfill soil cover. Ground water monitoring wells 

will be located around the landfill with samples taken twice per year to detect any releases should 

they occur. 

At this time more than 60% of the ash has been properly disposed. It is estimated that it will take 4 to 

5 more years complete the elean-up. Thc primary control factor for time to completions is the 

successful construction of the subsurface wall around the perimeter of the CERCLA disposal cell. 

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LANCE R. l£FLEUR 

DIRECTOR 

May 13,2013 

AIEM A1a.bama Department of Environmental Management 

adem,alabama,gov 

1400 Coliseum Blvd, 3611(}.2<100 • Post Office aox 301463 

Montgomery, Alabama 36130-1463 

(334) 271·7700 • FAX (334) 271-7950 

The Honorable John Shimkus, Chairman 

Subcommittee on Environment and the Economy 

Committee on Energy and Commerce 

2125 Rayburn House Office Building 

Washington, DC 20515 

RE: "The Coal Ash Recycling and Oversight Act of 20 13" 

ROBERT J. BENTLEY 

GOVERNOR 

Questions for the record from: The Honorable John Shimkus and The Honorable Henry A. 

Waxman 

Dear Mr. Shimkus: 

Thank you for the opportunity to participate in this hearing. I have received your questions for 

the record request, and you will find my responses attached. These have been coordinated with 

the appropriate Departmental program staff and management. 

If you have any questions concerning this matter, please contact me at 334-271-7739. 

Stephen A. Cobb, Chief 

Govemmenta11!azardous Waste Branch 

Land Division 

enclosure 

~rnBr>lneb 

110Vulr,a.nRoad 

Blrrnmgham,AL352D9-4702 

{20S) 9.d2~16B 

(205) rl41-1603 \FM) 

.......... """ 2715 sandlin Road, S. W. 

Decatur, AL 35603,1333 

(256)353-1713 

(2~6),'.40-9359(FAX) 

-""'''"'' 22001 Penmetel Road 

MObIle. Al 36615-1131 

-, 4171 Commanders Dnve 

Mobile. ilL 36615-1421 

{251) 432-6533 

1251l43Ui598\FAX\ 
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82182.150

The Honorable John Shimkus 

Stephen A. Cobb 

QFR Responses 

April 11, 2013 Hearing 

I. States have demonstrated the ability to implement similar permit programs. 

a. Wouldn't it just delay implementation of coal ash permit programs for States 

to have to go through the approval process twice? 

Response: Yes, imposing another pre-implementation approval process will 

likely result in significant delays in the implementation of the coal ash permit 

program. It should be recognized that States like Alabama have repeatedly 

demonstrated our ability to implement both hazardous and non-hazardous waste 

programs to meet national standards. In fact, states are the primary implementers 

of such laws and regulations. 

At this point in waste regulation, a pre-implementation review is not an effective 

or efficient use of resources. Years can be spent talking about how best to 

implement a program and debating the nuances of various specific details before 

actually implementing the programs to protect human health and the environment; 

or we can proceed quickly with implementation, get the programs and protections 

in place, and hold those programs accountable for achieving the results and goals 

that are the primary purpose ofthe law in the beginning. The issue of how to best 

regulate CCRs nationally has been debated for many years - it's time to finally 

implement a program to do so. 

In the past, before States had any experience and track record in implementing 

programs such as these, a pre-implementation review made more sense. 

However, our past regulatory experience has also shown that the preimplementation process is far too vulnerable to extended review and processing 

delays, as well as to workload priority and resource challenges These delays have 

been experienced due not only to technical discussions, but also to lengthy 

administrative and resource delays even when there are no technical disputes. It 

is better to implement the programs and get the environmental protection started 

earlier, and then review the results ofthat protection and make adjustments in real 

time as needed, which is the approach laid out in this bill. 

b. In your opinion, is EPA prior approval necessary for State permit programs? 

Response: No. See response to Question I.a. for further details. 

Page lof8 
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82182.151

Stephen A. Cobb 

QFR Responses 

April 11, 2013 Hearing 

c. What has heen your experience regarding the timing ofthe approval process 

and the process in general? 

Response: First, I wish to note that EPA Regional Program staff and 

management routinely work closely with our program to ensure that delays in 

program authorizations do not impede the expedient implementation of regulatory 

requirements. This is largely accomplished by implementation of new program 

requirements based on the fact that they are routinely incorporated into the 

Department's regulations and implemented pursuant to applicable State law, 

regardless of whether they have completed the authorization process to enable 

them to be implemented in lieu of the federal requirement. This implementation 

partnership has worked well to ensure that gaps and delays in the processing of 

authorization packages do not result in undesirable consequences pertaining to the 

implementation of new or updated federal program requirements. 

That said, it must be acknowledged that the pre-implementation process is replete 

with delays in processing authorization applications. To the best of my 

knowledge, ADEM's authorization application packages have historically and 

routinely been submitted in a timely manner. However, the review/approval 

process has consistently taken considerable time. ADEM's initial base program 

authorization for its Subtitle C program was received in December 1987, but 

initial authorization for the RCRA Subtitle C corrective action program was not 

received until April 1996, after several years of review and discussion back and 

forth between the State and EPA. ADEM's Subtitle C authorization history is 

provided in the attached Authorization Status Summary Table. Please note that 

the records regarding authorization submittal and approval dates are more 

complete for the period since 1999. 

There are such significant delays in EPA's processing of authorization 

applications that the actual process is being rendered meaningless. In many 

instances, portions of the regulations upon which a given authorization 

application was based have been significantly changed or even been deleted by 

subsequent annual updates before the previous authorization application 

review/approval is completed. The delays have been attributed to the overall 

priority of authorization reviews in the agency's workload, frequent changes in 

personnel assigned to perform the reviews, technical or procedural questions, lack 

of training, etc. Through our interactions with other States, we have learned that 

the delays and experiences we have had are quite similar to those of other States, 

and in some cases we have apparently fared better than some of our sister States. 

As shown in the attached table, we are currently awaiting finalization of seven 

Page 2 of8 
202 


82182.152

Stephen A. Cobb 

QFR Responses 

April 11, 2013 Hearing 

authorization applications initially submitted to EPA on January 18,2008, April 

11,2008, November 4,2008, May 29, 2009, June 1,20 I 0, June 1,20 II, and May 

25,2012. 

Regarding ADEM's Subtitle D MSW program, it is my understanding that when 

the application for this program approval was submitted in the early-to-mid 

1990's that it was processed and partial program authorization (minus the 

financial assurance component for which additional State legislative authority was 

required) was approved by EPA in a timely manner. 

2, As an experienced State regulator, do you think states are able to interpret the 

minimum program requirements in the bill to develop a permit program that is 

protective of human health and the environment? 

Response: Absolutely. We have considerable experience writing and 

implementing permit regulations based on both MSW and RCRA Subtitle C 

requirements. as well as other state and federal programs. We are environmental 

regulators, and a central part of our job as environmental regulators is to interpret 

the requirements oflaws, both state and federal, and to write and implement 

regulations based on those laws that protect human health and that preserve and 

protect the environment. J believe this legislation will give us the needed policy 

directive and requirements that we need to build these programs. The similarity 

of the bills requirements to the MSW program will also help to ensure efficiency, 

effectiveness, and consistency ofthe regulatory programs, as this similarity gives 

us established and proven regulations and processes to build from, as opposed to 

having to start wholly from scratch. 

3. As a regulatory official, how do you define backstop authority? Does the discussion 

draft have a federal backstop? 

Response: To me, backstop authority is a safety net that is available in case the 

primary authority does not succeed. And yes, the bill does provide a backstop to 

the anticipated State permitting programs for CCRs. The EPA review of State 

programs as they are implemented, and the ability for EPA to take over 

implementation of the program in a State ifthe State does not address identified 

issues is a powerful incentive for States, and thus protection of the public interest 

in this issue, to ensure that their programs do indeed meet the objectives and 

requirements of the law. 

Page 3 of8 
203 


82182.153

Stephen A. Cobb 

QFR Responses 

April 11, 2013 Hearing 

4. Opponents of the legislation claim that because the legislation does not include a 

specific "level of protection standard," States would be free to implement the bill's 

requirements in a manner meeting any standard of protection. They imply that 

States' latitude in implementing the requirements would result in programs that are 

not protective of human health and the environment - what's your response? 

Response: The central theme in all of our programs is to protect human health 

and the environment. This central theme may be expressed by slightly different 

words and phrases. but the message is the same - all of our jobs as regulators are 

designed and implemented to protect human health and the environment to ensure 

that ALL of our citizens arc able to enjoy a safe, healthy. and productive 

environment. 

In addition, the very fabric of the Solid Waste Disposal Act. including Subtitle D 

where this new law would reside, is about protecting human health and the 

environment, and that is true for our State laws and regulations as well. All of our 

jobs as regulators are to protect human health and the environment, and that's 

what we work to do every day. While it may be true that there can be some 

variations in how this concept is described and implemented. it is my anticipation 

and expectation as a State regulator that all of our programs will be designed to be 

protective. 

We must not lose sight of the fact that as State regulators. in addition to the fact 

that we are protecting human health and the environment simply because that is 

what we are charged to do, we and our families. friends and acquaintances live, 

work, and play in the areas where the facilities we regulate are located, so we also 

have a vested personal interest in ensuring that our rules and regulations are 

protective of both human health and the environment we live in. 

As an experienced State regulator who has helped set up regulatory programs, it is 

my expectation we will accomplish this by first identifying any specific 

requirements identi fied in the statute. such as the minimum standards included in 

this bill, and make sure those are included and addressed. In addition and as a 

part oflhat process. we would identify: 1) what systems/protections are needed to 

prevent releases to the environment; 2) what systems/protections are needed to 

prevent harmful exposures to people or the environment; 3) what provisions are 

needed to ensure adequate and appropriate monitoring and early warning systems 

are in place; and 4) what provisions are needed to ensure reporting and 

accountability measures are not only installed. but also operated and maintained. 

Page 4of8 
204 


82182.154

Stephen A. Cobb 

QFR Responses 

Apriill, 2013 Hearing 

This process would be accomplished while keeping a constant eye on the fact that 

the goal of all of these steps is to ensure that the end result is the protection of 

human health and the environment, or in the words of Alabama law, that all of our 

citizens are able to enjoy a safe, healthy and productive environment. 

The Honorable Henry A. Waxman 

At the Tennessee Valley Authority (TVA) Colbert Fossil Plant, in Tuscumbia, Alabama, 

TVA burns enough coal to produce almost 400,000 tons of ash each ycar. The ash is 

stored on site in a dry landfill, an active wet impoundment, and an inactive wet 

impoundment. Groundwater monitoring data from the site, obtained from TVA through 

Freedom of Information Act request, shows groundwater contamination with 

contaminants from coal ash including lead and arsenic. Arsenic levels have been 

documented as high as seven times the maximum contaminant level under the Safe 

Drinking Water Act. 

Additionally, residents living around the active impoundment have documented seepages 

from the impoundment into a nearby creek. Testing of those seepages has shown high 

concentrations of toxic metals. Citizens have sued TVA to try to put a stop to this ongoing 

contamination. 

It seems that some actions have been taken to address contamination from a metal 

eleaning pond at the site, but not to address the contamination from onsite ash disposal or 

the seepages at the creek's edge. 

1. What action is your Department taking or will your Department commit to take to 

containing this contamination, and what is your timeline for doing so? 

Response: The Alabama Department of Environmental Management filed a 

complaint against the Tennessee Valley Authority on April 12, 2013 for the 

discharge of pollutants associated with ash pond wastewater and/or other storage 

pond wastewater at the Colbert Fossil Plant to waters of the state. The complaint 

requests an Order that TVA take such actions as deemed necessary by the 

Department to address the unauthorized discharges. Any such actions and 

timeframes associated with those actions will be determined in the context of the 

litigation as approved by the court. 

Page 5 of 8 
205 


82182.155

Stephen A. Cobb 

QFR Responses 

April 11, 2013 Hearing 

2. What action is your Department taking or will your Department commit to take to 

assess and clean up this contamination, and what is your timeline for doing so? 

Response: See response to Question I. 

3. What action will your Department take to ensure that monitoring of these wells in 

the future is adequate so that any future contamination is detected and addressed? 

Response: See response to Question I. 

At the TVA Widows Creek Fossil Plant, in Stevenson, Alabama, monitoring has shown 

contamination with boron, cobalt, manganese, and sulfate. Manganese levels were 

documented at levels as high as 100 times the EPA lifetime health advisory level. 

4. What action is your Department taking or will your Department commit to take to 

containing this contamination, and what is your timeline for doing so? 

Response: My response to this question is based upon my inquiry and 

discussions with Department management and staff with current regulatory 

authority over this facility. It is not wholly clear from the information provided 

whether the question is referencing surface water concerns, or groundwater 

concerns. Therefore. our response is divided to address both possibilities 

The Alabama Department of Environmental Management is not aware of any 

surface water data for boron. cobalt. manganese. or sulfate in exceedance of 

established water quality criteria as a result of the operations at the Widows Creck 

Fossil Plant. The Department will continue to monitor the compliance status of 

thc facility and the surface water quality in the surrounding area and if any issues 

are noted the appropriate actions will be taken to protect human health and the 

environment. 

Regarding groundwater. unlike the TVA Colbert facility. there is no current 

groundwater monitoring requirement under any ADEM program at the TV A 

Widows Creek facility. Thus the Department is not in possession of any current 

groundwater information such as what appears to be referenced in the question. If 

such information is provided. the Department will expeditiously evaluate the 

infonnation provided. conduct appropriate investigations. and take appropriate 

Page 6 of 8 
206 


82182.156

Stephen A. Cobb 

QFR Responses 

April 11, 2013 Hearing 

actions to ensure that any contamination is addressed in a timely, appropriate and 

protective manner. 

Nevertheless, the Department is initiating its own fact-finding process to 

determine the appropriate response under current State and federal law and 

regulations. If the data referenced in this question can be provided to the 

Department, it will greatly aid in our evaluation of this matter. 

In addition, if this information points to a coal combustion residuals related 

sourec, the Department will be better able to respond to this and similar situations 

using the increased authorities and requirements provided by "The Coal Ash 

Recycling and Oversight Act of 20 13" as discussed in the April 11, 2013 hearing. 

Therefore, the Department encourages the expeditious enactment of this important 

legislation to provide Alabama and other States with better and more robust tools 

with which to eftectively and expeditiously prevent, respond to and address these 

situations. 

5. What action is your Department taking or will your Department commit to take to 

assess and clean up this contamination, and what is your timeline for doing so'? 

Response: See response to Question 4. Based upon the results of the 

investigation of the matter referenced in the question and the results of the 

Department's pending inquiry regarding the facts, the Department plans to initiate 

an appropriate response using the authorities at its disposal. At this time, it is not 

possible to identify a specific timeline until the Department is able to determine 

the facts, but this proeess has been started as a result ofthis inquiry and 

complaint. As with the response to Question 4. prompt enactment of "The Coal 

Ash Recycling and Oversight Act of2013" as discussed in the April II, 2013 

hearing will provide the Department with bettcr and more robust tools with which 

to effectively address this matter. 

6. What action will your Department take to ensure that monitoring ofthese wells in 

the future is adequate so that any future contamination is detected and addressed? 

Response: Sec response to Question 4. Based upon the results of the 

investigation of the matter referenced in the question and the results of the 

Department's pending inquiry regarding the facts, the Department plans to initiate 

an appropriate response using the authorities at its disposal. At this time, it is not 

Page 7 of 8 
207 


82182.157

Stephen A. Cobb 

QFR Responses 

April 11, 2013 Hearing 

possible to identify a specific timeline until the Department is able to determine 

the facts, but this process has been started as a result of this inquiry and 

complaint. As with the response to Question 4, prompt enactment of "The Coal 

Ash Recycling and Oversight Act of2013" as discussed in the April!!, 2013 

hearing will provide the Department with better and more robust tools with which 

to effectively address this matter. 

Page 8 of8 
208 


82182.158

Alabama HSWA RCRA Authorization History 

Cluster Checklists Changes to Federal Effective Date Date mailed to Date these changes Notes 

RCRA Program in Alabama EPA were published or 

Regulation authorized for 

Alabama in Federal 

Register 

XXII 228 07/01111-06/30/12 3126113 application 

under 

development 

XXI 226-2Z7 07101110-06/30/11 4/3/12 5/25112 

XX 223-225 07/01109-06/3011 0 3131111 6/1/11 

XIX 219-221 07/01108-06/30/09 3130/10 611/10 

XVIII 216-218 07/01/07-06/30/08 3/31109 5/29/09 EPA Sent Comments 

2/1/12 We responded 

2/16112 

XVII 214-215 07/01106-06/30/07 5127/08 11/412008 • EPA Sent Comments 

1124/12 We responded 

2/6/12 

XVI 209-213 07/01105-06/30/06 4/3/07 4/11/0/8 

XV (revised) 205-208 7/1/04-6130105 414/06 1118/08 Checklist 206 only Checklists 207 & 208 

Published 04102108 were not published 

Effectiye 6/2/08 and the StATS data 

shows no effective 

date 

XV 206-207 711/04-6/30/05 414/06 7/14106 Checklist 206 AG statement mailed 

Effective 6/2/08 July 18, 2007 

XIV 203-205 07/01103-06/30/04 3131105 7/1/05 Published and 

Effecti\'c 9/13/2006 

XIII 200-202 07/01102-06130103 5127/04 2/18105 Published 06102/05 

Effective 08/01/05 

XII 194-199 07/01101-06/30/02 4/17/03 6/23/04 Published 03/15/05 

Effective 05116105 

XI 188-193 07/01100-06/3010 I 3/15/02 ? Published 03/15/05 

Effective 05/16/05 

has checklist 192A 

X 181-187 07/06/99-06/30100 4113101 ? Published 03/15/05 

Effective 05116105 

Public Hearing 

12/14/2000 

"EPA did not release the authorization checklists until weI! aftN our normal submittal time 
209 


82182.159

Alabama HSWA RCRA Authorization History 

Cluster Checklists Changes to Federal Effective Date Date mailed to Date these changes Notes 

RCM Program in Alabama EPA were published or 

Regulation authorized for 

Alabama in Federal 

Register 

IX 171-180 09/01/98-06/30199 3/31/00 6127100 Published 03/15/05 

Effective 05/16/05 

VIII 160-170 07/01197-08/31198 412199 7/26/99 Published 03/15/05 

Effective 05116105 

VII 7/1/96-06/30/97 3/27/98 7/1/98 

VI 7/1/95-6/30/96 3/28/97 7/1/97 

V 2/10/98 

IV 2/10/98 

Recycled Used 

Oil 

Management 

Standards 

ReRAIII 2/10/98 

CAMUand 

Temporary 

Units RCRA III 6/24/96 

BIFj Admin 

Stary for Coke 

Ovens RCRA II 6/24/96 

Burning HW in 

BIF Corrections 

and Technical 

Amendment 11-

ReRAIi 6/24/96 

Burning HW in 

BIF Corrections 

and Technical 

Amendment~ 

ReRAIi 6/24/96 

Corrective 

Action for 

Injection Wells 

HSWAII 6/24/96 

*EPA did not release the authorization checklists until we!! after our normal submittal time 
210 


82182.160

Alabama HSWA RCRA Authorization History 

Cluster Checklists Changes to Federal Effective Date Date mailed to Date these changes N"otes 

RCRA Program in Alabama EPA were published or 

Regulation authorized for 

Alabama in Federal 

Register 

Corrective 

Action Beyond 

Facility 

Boundary 

HSWAII 6/24/96 

letter requesting 

interim final 

Corrective authorization for CA 

Action ~ HSWA I 4/15/96 sent 7/26/94 

RCRAIII 10/13/95 

BIF (RCRA I) 10/13/95 

RCRA II 1/13/95 

RCRAI (w/o 

BIF) 4/4/94 

HSWAII& 

Organic Air 11/23/93 

HSWAI (w/o 

CAl 5/17/93 

Non-HSWAVI 5/17/93 

Radioactive 

Mixed Waste 

(Non·HSWA III) 5/17/93 

TCLP (HSWA II) 12/21/92 

Non-HSWAV 12/21/92 

Availability of 

Information 

(Non·HSWA I) 3006(1) 8/6/91 7/12/92 

Non~HSWAIV 7/12/92 

Non-HSWAIII 1/28/92 

Non-HSWAII 1/28/92 

Non-HSWAI 1/28/92 

Pre-HSWA 12/22/87 

"'EPA did not release the authorization checklists until weI! after our normal submittal time 
211 


82182.161

Hearing on "The Coal Ash Recycling and Oversight Act of 2013" 

April 11, 2013 

Responses of Susan Parker Bodine to questions for the record from the Honorable Johu 

Shimkus: 

I. As a fonner regulatory official, how do you define backstop authority? Does the 

Discussion Draft have a federal backstop? 

Backstop authority exists where one entity can take action if another entity fails to act. In the 

context of federal environmental laws. I define federal backstop authority as authority for EPA to 

take action where a state agency has failed to act. This is the backstop authority that EPA has 

under Subtitle D ofRCRA. EPA has no separate enforccment authority in states with approved 

Subtitle 0 programs. EPA can regain enforcement authority by taking away state program 

approval. This also is the backstop authority providcd by the Discussion Draft. 

I would contrast backstop authority with over-filing. Over-filing occurs where a state has taken 

action, but EPA chooses to second-guess the stale action and take its own action. Subtitle D of 

RCRA does not give EPA the authority to over-file. In fact, the case law is mixed on whether 

EPA has over-filing authority related to the management of hazardous wastes under Subtitlc C. 

Compare Harmon Indus. v. Browner. 191 F.3d 894 (8th Cir. 1999) (holding that EPA may not 

over-file in RCRA Subtitle C cases given the unique statutory language that state programs 

operate "in lieu of' the federal program), with United Stales v. Power Eng 'g Co., 303 F.3d 1232 

(lOth Cir. 2002) (holding that EPA may over-file in RCRA Subtitle Ceases). 

2. Please explain the steps EPA would have to take to legally issue a new regulatory 

determination for coal ash. 

First, it is unclear whether or not EPA has authority to issue a new regulatory determination. 

Congress required the determination authorized under the Bevill amendment to be made by a 

date certain. Subsequent changes to a determination would undermine that congressionally 

mandated deadline. However, assuming that EPA can change a regulatory detcrmination, any 

new determination must still meet the requirements of section 3001(b)(3)(C). Thus, any new 

regulatory determination must be based on infonnation dcveloped or accumulated pursuant to a 

study conducted under section 8002(n) of RCRA which has to be submitted to Congress. In its 

2000 regulatory determination EPA citcs 3001(b)(3)(C) as the authority for its action. The 2010 

proposed rule does not mention 3001(b)(3)(C) and EPA does not claim to be acting under that 

authority --- that is EPA's only authority for making a regulatory determination for coal ash. 

3. Please explain the steps EPA would have to take to issue a legally defensible rule under 

Subtitle C. 

An EPA regulation listing waste as hazardous must meet the criteria established by Congress 

under section 3001(a). These criteria, promulgated at 40 C.F.R. 261.II(a), are as follows: 

(a) The Administrator shall list a solid waste as a hazardous waste only upon determining 

that the solid waste meets one of the following criteria: 
212 


82182.162

(l) It exhibits any of the characteristics of hazardous waste identified in subpart 

C. 

(2) It has been found to be fatal to humans in low doses or, in the absence of data 

on human toxicity, it has been shown in studics to have an oral LO 50 toxicity 

(rat) of less than 50 milligrams per kilogram, an inhalation LC 50 toxicity (rat) of 

less than 2 milligrams per liter, or a dermal LO 50 toxicity (rabbit) of less than 

200 milligrams per kilogram or is otherwise capable of causing or significantly 

contributing to an incrcase in serious irreversible, or incapacitating reversible, 

illness. (Waste listed in accordance with these criteria will be designated Acute 

Hazardous Waste.) 

(3) It contains any of the toxic constituents listed in appendix VIII and, after 

considering the following factors, the Administrator concludes that the waste is 

capable of posing a substantia! present or potential hazard to human hcalth or the 

environment when improperly treated, stored, transported or disposed of, or 

otherwise managed: 

(i) The nature of the toxicity presented by the constituent. 

(ii) The concentration of the constituent in the waste. 

(iii) The potential of the constituent or any toxic degradation product of 

the constituent to migrate from the waste into the environment under the 

types of improper management considered in paragraph (a)(3)(vii) of this 

section. 

(iv) The persistence of the constituent or any toxic degradation product of 

the constituent. 

(v) The potential for the constituent or any toxic degradation product of 

the constituent to degrade into non-harmful constituents and the rate of 

dcgradation. 

(vi) The degree to which the constituent or any degradation product of the 

constituent bioaccumulates in ecosystems. 

(vii) The plausible types of improper management to which the waste 

could be subjected. 

(viii) The quantitics of the waste generated at individual generation sites 

or on a regional or national basis. 

(ix) The nature and severity of the human health and environmental 

damage that has occurred as a result of the improper management of 

wastes containing the constituent. 

(x) Action taken by other governmental agencies or regulatory programs 

based on the health or environmental hazard posed by the waste or waste 

constituent. 

(xi) Such other factors as may bc appropriate. 

Coal ash does not exhibit a hazardous characteristic and is not fatal to humans in low doses. 

Thus, EPA can only list coal ash as a hazardous waste bascd on a determination that coal ash 

poses a "substantial present or potential hazard to human health or the environment." EPA must 

support such a detennination with a risk assessment. However, has not developed a risk 

assessment that can support this detennination for coal ash. 

2 
213 


82182.163

In my written testimony I point out the flaws in EPA's risk assessment that have been identified 

by peer reviewers. These issues suggest the risk associated with coal ash is less than estimated 

by the EPA risk assessment. EPA has never addressed the issues raised by the peer review. In 

briefs filed in court EPA has acknowledged these issues and has said that it wants to take more 

time with its coal ash rulemaking so that it can address them. In fact, in a December brief, EPA 

said that after considering the new information it has on coal ash facilities, the risks in its risk 

assessment could change by an order of magnitude. I anticipate the direction ofthat change will 

be down showing a reduced risk. 

Given the flaws in the risk assessment identified in a peer review, and EPA's admission that its 

risk assessment is wrong by an order of magnitude, if EPA tried to issue a final rule that 

regulated coal ash as a hazardous waste based on its record, that rule would be very vulnerable to 

a claim that the rule is arbitrary and capricious. 

3 
214 


82182.164

Ms. Lisa Evans 

Senior Administrative Counsel 

EarthJustice 

21 Ocean Avenue 

Marblehead, MA 01945 

Dear Ms. Evans: 

April 29, 2013 

Thank you for appearing before the Subcommittee on Environment and the Economy on Thursday, Aprilll, 

2013, to testilY at the hearing on a discussion draft entitled "The Coal Ash Recycling and Oversight Act of 20 13." 

Pursuant to the Rules of the Committee on Energy and Commerce, the hearing record remains open for ten 

business days to permit Members to submit additional questions for the record, which are attached. The format of your 

responses to these questions should be as follows: (1) the name of the Member whose question you are addressing, (2) the 

complete text of the question you are addressing in bold, and (3) your answer to that question in plain text. 

To facilitate the printing of the hearing record, please respond to these questions and requests by the close of 

business on Monday, May 13,2013. Your responses should be e-mailed to the Legislative Clerk in Word format at 

Nick.Abraham@mail.house.gov and mailed to Nick Abraham, Legislative Clerk, Committee on Energy and Commerce, 

2125 Rayburn House Office Building, Washington, D.C. 20515. 

Thank you again for your time and effort preparing and delivering testimony before the Subcommittee. 

stcere1Y, 

Jr "'''' rr 

Ythn Shimkus 

Chairman 

Subcommittee on Environment and the Economy 

cc: The Honorable Paul Tonko, Ranking Member, 

Subcommittee on Environment and the Economy 

Attachment 
215 


82182.165

By Email 

May 21, 2013 

The Honorable John Shimkus 

Chairman 

Subcommittee on Environment and the Economy 

Committee on Energy and Commerce 

c/o Nick Abraham, Legislative Clerk 

2125 Rayburn House Office Building 

Washington, DC 20515 

NidAbraham((i)house.gov 

Re: Responses to questions submitted by the Honorable Henry A. Waxman 

Dear Mr. Shimkus: 

Thank you for the opportunity to provide answers to questions submitted as a follow-up 

to my testimony before the Subcommittee on Energy and Environment on April 11. This letter 

provides my responses to questions submitted by the Honorable Henry A Waxman conceming 

the discussion draft entitled "The Coal Ash Recycling and Oversight Act of2013." For your 

convenience, I have repeated Representative Waxman's question (in bold), followed by my 

answer. 

Recent reports by the Congressional Research Service (CRS) analyzing legislative 

proposals to address coal ash disposal have raised serious concerns about the efficacy of 

rccent bills. 

1. Do you concur with conclusions reached in the CRS reports about weaknesses in 

H.R. 2273 and S. 3512? 

Yes, I concur with the conclusions reached in both Congressional Research Service 

(CRS) reports about the weaknesses in H.R. 2273 and S. 3512. 

2. Please describe what tbe most significant weaknesses with tbose bills are, in your 

view. 

CRS described numerous critical problems in H.R. 2273 and S. 3512. The unequivocal 

conclusion of the CRS was that the bills lacked a clear purpose 1 and would not ensure state 

adoption and implementation of minimum standards "necessary to protect human health and the 

1 Congressional Research Service, H.R. 2273 and S. 3512: Analysis a/Proposals to Creole a Coal Combustion 

Residuals Permit Program Under RCRA. (Dec. 5.2012) (hereinafter "2012 CRS Report). Summary. 

21 Ocean Ave., Marblehead, MA 019458 

T.781-631-4119 F.781-631-9932 E. levans@earthlustice.org 

W: www.earthjustice.or9 
216 


82182.166

Page 2 of 32 

environment.,,2 CRS found that S.35l2's approach to regulation of coal ash was 

"unprecedented" in environmental law. 3 The bills depart from benchmark environmental statutes 

in important ways that significantly harm their effectiveness as vehicles to protect health and the 

environment nationwide. Among the most significant weaknesses identified by CRS are the 

following: 

I. Failure to Establish a Protective Standard 

The 2013 CRS Report identified the failure of the coal ash bills to establish a national 

protective standard, stating "[t]here is no provision in Section 40 II that explicitly requires 

regulations promulgated by the state and implemented by a CCR Permit Program to achieve a 

certain level of protection.,,4 The reports could not be any clearer in pointing out that the 

unprecedented approach of the bills. whereby ''[e]ach state arguably could apply its own standard 

of protection."s 

The practical impact of no protective standard is that the EPA would have no authority to 

assert the failure of a state to protect human health or the environment as a "program 

deficiency." CRS explains, "The absence of an explicit statement in the bills has implications for 

how EPA might exercise its authority in the event of absent or deficient state action.,,6 CRS 

observes that, unlike the federal municipal solid waste permit program, the bill would curtail 

EPA oversight to an exceptionally narrow range of issues. CRS writes, "EPA would not be 

authorized to identify as a deficiency the program's adequacy to enforce federal statutory 

standards or to assess the level of protection the program may provide.,,7 

2. Failure to Establish Minimum Federal Standards 

The bills fail to establish minimum federal standards for the management and disposal of 

coal ash under state pennit programs. The 2013 CRS Report concluded that the bills would 

"allow individual states to define key tenns .... Hence program applicability could vary from 

state to state, depending on how each state defines those terms." The Report explained: 

Permit programs were created previously under RCRA when Congress wanted to 

ensure that certain solid waste disposal facilities would be subject to regulatory 

criteria that achieved a minimum national standard of protection and that a penn it 

program would be implemented to assure facility compliance with that standard. 

The proposed statutory criteria included among the Permit Program 

Specifications are not comparable, in scope or in detail, to [hose identified by 

EPA as those necessary to protect human health from risks specific 10 CeR 

disposal and use (in the June 20 I 0 EPA proposal). Absent directives that 

regulations promulgated and applied to CCR structures achieve a federal standard 

2 20 12 CRS Report. Summary. 

J 2012 CRS Report at 2. 

4 2013 CRS Report at 38. See also, 2012 CRS Report at30. 

s 2013 CRS Report. Summary at page 3. 6 1d. 

7 2012 CRS Report at 25. 

8 2013 CRS Report, Summary at page 2. 
217 


82182.167

Page 3 of 32 

of protection, slates might promulgate and implement regulations according to a 

state-established standard o/protection, which might vary-from state to state.9 

CRS specifically pointed out that this failure to establish minimum federal standards 

could result in programs that are far less protective than state requirements pertaining to 

municipal solid waste landfills. CRS concluded "given the Hexibility that states would have to 

define several key program elements, it cannot be predicted whether state programs to regulate 

CCRs, developed and implemented pursuant to provisions in Section 4011. would result in the 

management ofCCRs comparable to the existing programs to regulate MSW landfills."lO 

Aceording to CRS, key directives critical to program implementation are either missing 

from or ambiguously defined in S. 3512 (the discussion draft). Ambiguous directives would be 

subject to a state's interpretation of those requirements (e.g .• a definition of entities subject to the 

permit program and deadlines for existing facilities to obtain permits). CRS explained, "Due to 

the questions regarding how states may implement it, a CCR permit program would be similar to 

the program to regulate Municipal Solid Waste (MSW) landfill criteria, only in states that choose 

to implement it as such. That level of uncertainty deftats the purpose a/a permit program and 

would not be consistent with other permit programs created under RCRA."l! 

3. Absence of Federal Backstop Authoritv 

The CRS reports are unequivocal about the failure ofS. 3512 to provide EPA with 

"backstop authority." The 2013 CRS Report stated that the bill "would not provide EPA with 

authority to backstop state programs to regulate CCR facilities.,,!2 Similarly, the 2012 CRS 

Report was crystal clear. stating. 

The proposed amendments to RCRA include no directive to EPA to determine 

whether state CCR permit programs are adequate to enforce the statutory 

standards or to assess whether the programs would result in necessary protections. 

Instead. EPA would be required to notify states of deficiencies in a narrow range 

of program requirements. Given other limits to EPA's role in state 

implementation of a CCR permit program. EPA would have no federal backstop 

authority to implement federal standards comparable to its authorities established 

under other environmental law, including RCRA. Regardless of whether a state 

chose to adopt a CCR permit program, EPA would have no authority to compel 

states to adopt and implement the program according to provisions in the 

proposed amendments to RCRA.,,13 

9 2013 CRS Report at 16. Emphasis added. 

10 2013 CRS Report at 37. 

11 2012 CRS Report at 21·22. Emphasis added. 

12 2013 CRS Report at 9. 

13 2012 CRS Report at 2. Emphasis added. 
218 


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Page 4 of 32 

4. Inadequate Requirements for Wet Impoundments 

Both CRS reports concluded that the requirements concerning structural stability of coal 

ash impoundments in S.3512 14 are not equivalent "in detail or scope" to the safeguards proposed 

by the EPA to ensure the structural stability of dangerous coal ash dams.!S According to CRS, 

the EPA modeled its proposed coal ash impoundment standards on the Mine Safety and Health 

Administration (MSHA) regulations for "water, sediment, or slurry impoundments and 

impounding structures" set forth at 30 C.F.R. §77.216. '6 According to CRS, the EPA's decision 

to draw from the MSHA safety standards was based on its belief that records compiled by 

MSHA for its rulemaking and the agency's 40 years of experience in implementing those 

requirements "provided evidence that similar requirements, applied to CCR surface 

impoundments, will prevent a catastrophic release ofCCRs from surface impoundments, as 

occurred at TVA's facility in Kingston, TN, and will ¥enerally meet RCRA's mandate to ensure 

the protection of human health and the environment." 7 

CRS pointed out that S. 3512 lacked standards equivalent to the EPA's proposed criteria, 

which "included more detailed requirements comparable to the MSHA standards.,,18 In fact, the 

structural integrity section of the bill is riddled with gaps that render it wholly insufficient to 

prevent future potentially deadly dam failures. S. 3512 (the discussion draft) does not require 

owner/operators of coal ash dams to submit inspection reports to their state regulatory agencies, 

even when serious deficiencies are found. The bill also does not require public disclosure of 

inspections. Nor does the bill require an owner/operator to remedy deficiencies in a timely 

manner or require the state to order them to do so-no matter what was uncovered in an annual 

inspection. 19 Lastly, there is no requirement that these annual inspections begin one year, five 

years, or even decades after enactment of the bill. Their timing is wholly dependent on when a 

state begins to implement its permit program, which is entirely discretionary to the state. 

However, even if the bill required annual inspections to begin immediately, the 

usefulness of these inspections is extremely suspect. The bill simply requires that an engineer, 

hired by the utility, certifY that the design of the structure is "in accordance with recognized and 

generally accepted good engineering practices.,,2o The bill does not require engineers to employ 

federal standards in this certification, submit such certification to the state or EPA, or make such 

certification public. If the engineer cannot certify that the "construction and maintenance ofthe 

structure will ensure dam stability.,,2! the bill requires no ji,rther action by the utility or the state. 

Lastly. the bill does not require the slate or EPA to ever inspect dams, even if such 

impoundments are found to be unstable or in urgent need ofrepair, regardless of the size. age, 

condition or hazard potential of the dam. 

J4 See §§ 401 l(c)(l)(B) and 401 l(c)(l)(A). 

J5 2012 CRS Report at 24. See also, 2013 CRS Report at 39. 

J6 See proposed 40 C.F.R. Section 257.71, "Design criteria for existing CCR surface impoundments." U.S. Envtl. 

Prot. Agency, "Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; 

Disposal of Coal Combustion Residuals From Electric Utilities," 75 Federal Register 35128. June 21, 2010. 

17 2013 CRS Report at 27. See 75 Federal Register 35128, at 35243, June 2010. 

18 2013 CRS Report at 30. 

J9 See Section 401 1 (c)(J)(B). 

20 See § 401 l(c)(l)(B)(i)(I). 

21 ld § 401J(c)(J)(B)(i)(II). 
219 


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Page 5 of 32 

5. Failure to Set Deadlines for Permit Issuance 

The CRS reports observed that the bills would "establish no explicit deadlines for the 

issuance of permits or for facility compliance with applicable regulations.,,22 Since S.3512 

establishes no deadlines for permit issuance, states have no deadlines for imposing the 

requirements set forth in the "revised criteria." The absence of a deadline renders the bill nearly 

meaningless. Since almost all the requirements applicable to coal ash dumps are effective only 

through state permits, compliance with needed safeguards can be delayed indefinitely. S. 3512 

contains very few self-implementing requirements. Further, without a deadline for states to issue 

permits, EPA oversight is an empty promise, and in the absence of permit issuance, citizen 

enforcement of standards is legally impossible. 

6. Failure to Require Adequate Fugitive Dust Controls 

Neither H.R. 2273 nor S. 3512 require the control or prevention of airborne coal ash 

sufficient to protect the health of communities residing near coal ash impoundments and 

landfills. According to CRS, the EPA found risks and actual evidence of human exposure from 

"fugitive dust emissions, when fine particulates in the dried ash become airborne as at landfills or 

large-scale fill operations.d3 Yet the bills simply direct a state agency to "address" wind 

dispersal of coal ash, but fail to provide a standard for air quality analogous to the EPA's 

proposed health-based federal requirement that fugitive dust not exceed 35 uglm3.24 The bills 

also fail to include the federal minimum "cover material requirements" mandated at municipal 

solid waste landfills. 

3. Are those weaknesses addressed in the discussion draft that was the snbject of the April 

lIth hearing? 

No. Although the two CRS reports were crystal clear in their identification of numerous 

significant deficiencies in H.R. 2273 and S. 3512, none of the weaknesses was addressed in the 

discussion draft. The discussion draft that was the subject ofthe April II, 2013 hearing is 

identical to S. 3512. The failure to amend the discussion draft to close any ofthe substantial gaps 

and problems identified in the two reports by the nonpartisan Congressional Research Service is 

quite remarkable. 

According to CRS, the term "federal backstop enforcement authority" is widely 

understood to mean explicit authority provided to the Environmental Protection Agency 

(EPA) to enforce standards at individual facilities in a state authorized by EPA to 

implement and enforce federal standards. 

22 20 J 3 CRS Report, at Summary. 

23 2012 CRS Report at 14. See also, 2013 CRS Report at 25. 

24 See § 4011(c)(I)(D). 
220 


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Page 6 of 32 

4. Do you concur with CRS's definition of that term? 

Yes, I concur with CRS' definition of "federal backstop enforcement authority." It is my 

understanding that this is the common meaning of the term. 

As we heard at a hearing in the Environment and the Economy Subcommittee in February, 

under the proven model of environmental delegation to the states, EPA retains backstop 

enforcement authority, as defined by CRS, to ensure that every citizen in the United States 

is receiving a minimum level of protection from environmental risks. This backstop 

authority allows EPA to step in and enforce requirements at a noncompliant facility, when 

a state is incapable, unable, or unwilling to do so. This authority is especially important 

when environmental harms are disproportionately borne by traditionally disenfranchised 

groups, like low-income communities. 

5. Can you describe whether contamination associated with coal ash disposal 

disproportionately harms vulnerable communities, and, if so, how? 

Contamination of water and air associated with unsafe disposal of coal ash, as well as the 

adverse impacts of dam failures, disproportionately harms low income communities. These 

vulnerable communities are more heavily impacted because coal ash landfills and impoundments 

are more often located in impoverished neighborhoods. The location of coal ash dumps in such 

communities raises issues of environmental justice, because low income neighborhoods tend to 

rely more on groundwater as their sole source of drinking water, are less likely to have access to 

medical care and insurance. and are much less likely to have resources to legally assert their right 

to uncontaminated water and air. 

The following table lists the 15 largest coal ash-generating states, based on 2004 data25 

and indicates the percentage of coal ash impoundments in low income communities. On average 

for the 15 states, nearly 70 percent of the impoundments are located in zip codes where the 

communities are impoverished according to U.S. Census Bureau statistics. 

25 See U.S. EPA, Regulatory Impact Analysis for EPA's Proposed Regulation of Coal Combustion Residues 

Generated by the Electric Utility Industry, Office of Management and Budget (O'\1B) Review Draft 148-65 (2009), 

available at http://www.regulations. gov IsearchiRegsihome.html#document. 

Detail?R=0900006480aSI278 at 224-25, 235-36. 
221 


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Page 7 of 32 

According to the 2007 Economic Census, families living on less than $20,000 annually arc 

impoverished. Poverty analyzed by Zip Code Tabulation Area (ZCTA), based on the U.S. 

Census Bureau's 2007·201 I American Community Survey 5·Year Estimates for ZCTAs. 

"Poverty Area" defined as a ZCT A with a poverty level above the state average. 

• NM data based on 2000 census data due to incomplete 2007 ·20 II census data. 

To illustrate further, the following are maps oflandfills and impoundments in Ohio, 

Georgia and Tennessee, in which, respectively, 83,6 percent, 85.4 percent and 100,0 percent of 

the state's coal ash impoundments are located in low income communities. 

82182.172

Coal Ash and Environmental Injustice 

Poverty and the location of Coal Ash Impoundments and landfills in Ohio 

eEARTHJUZTICE 

Eighty-four 

impoundments and landfms .a

located in areas Wml poverty l

above the state average. 

"Ollio's state-wide inliivwuai pover

is 14.8%. According to thE' 20:01 Eo

Census, families (wing on tess tha

amma-Ny aTe impowrishe-d. Povert

by Zip Code Tabub"tion Area, base

u.s. Ce-nsus Bureau's 2001-2011 Am

Community Survey 5-Year Estimat

Code TabutdtiOMI Areas. 

""Co.a:l ash impoundments and land

located by h:.mgitude and latitude. D

p:rovid:ed by US EPA. CGT 

82182.173

Coal Ash and Environmental Injustice 

Poverty and the location of Coal Ash Impoundments and landfills in Georgia 

8EAIlTHluSTIce 

Coa1 Ash impQundme:nts and 

P:Y1ferty 

o NotAb1Ove State Poverty AY

Percent of lndividuats Below Pove

00 

:6.51 

25.01 -

-

11145.01 -

state--wlde 

Economtc 

than $20,000 annu.a!ty are im,""·e<i

Poverty displayed by Zip Tab

Area {leTA}, baseo on tl'lE' U.S. Cen

Bun?.au's 2007-20 t 1 American C om

Survey 5-Ve.ar Estimates for ZeTAs

HCoal ash data pr-o<tided 

US EPA. 

82182.174

Coal Ash and Environmental Injustice 

Polterty and the location of Coal Ash Impoundments and landfills In Tennessee 

eEARTHIUSTICE 

Coal Ash lmpoundments and l3fl;dfiUs W' 

• Above Average Poverty o Net Above State Poverty Average* 

Percent of Individuals Below Pov-.erly Une 

'IllennesS!!'e"s indl'lidlJat poverty is 1£.9%" 

A.cc:.ording to too 2007 Economic Cen'WS. wing on 

2007-2011 A:mericart Community Survey 5-'ie,;gr E'itim;;tles fur IIp -Code Tabul.;;OOn Areas. 

"'Coal ash Iot;aOOns hy US EPA. 
225 


82182.175

This disparity in the siting of coal ash landfills and impoundments in low income 

communities has far reaching consequences. Not only are impoverished communities more likely 

to have their health, property and environment harmed by coal ash contamination, but there is 

likely to be less recourse to adequate and enforceable safeguards in the states posing the greatest 

potential for harm. In many of the states that generate the largest volumes of coal ash and have 

the greatest disproportionate impact, state regulatory programs are the weakest. For example, 

until 20 II, Alabama had no regulations pertaining to coal ash, and despite statutory changes in 

20 II, the state still does not regulate coal ash impoundments.16 Ohio excludes virtually all coal 

ash from regulation by classifying it as "nontoxic" and, therefore, exempt. 27 Georgia regulations 

fail to require liners, groundwater monitoring, or even inspections at their many coal ash 

impoundments, and thc state permits the siting of dumps directly in the water table. New Mexico 

exempts coal ash entirely from regulation as a solid waste."8 Texas excludes all coal ash that is 

disposed of on-site (defined as anywhere within 50 miles of the place of generation) or destined 

for beneticial reuse (the vast majority the state's coal ash) from regulation."9 Indiana regulations 

do not require groundwater monitoring at all of the state's impoundments and landfills, and the 

state has few requirements for ensuring dam safety, including no requirement that dams be 

designed by a professional engineer, inspected or bonded. With few exceptions, state programs 

in the largest coal ash-producing states are grossly deficient and lack many basic requirements 

for ensuring safe coal ash disposal. To make matters even more urgent, the number of coal ash 

impoundments in these top 15 coal ash-generating states comprises over 78 percent of the total 

number of impoundments in the United States. 

6. Is federal backstop enforcement authority necessary to address that disparate 

impact? 

Yes, federal backstop enforcement authority is necessary to ensure that disproportionate 

harm does not occur to the nation's most vulnerable communities. It is especially critical that 

federally enforceable minimum standards exist in states where utilities generate large amounts of 

coal ash, where there is disparate impact to low income communities, and where there is a 

history of state failure to establish baseline safeguards to protect such communities. 

By way of example, one can look to the harm that occurred to the low income and 

predominantly black community of Uniontown, Alabama, which is discussed in more detail at 

the end of this document. Approximately 4 million tons of coal from the 2008 TVA disaster in 

Harriman, Tennessee was shipped to the Arrowhead Landfill in Uniontown for disposal in 2009. 

Despite complaints and legal actions by the affected residents near the landfill, the Alabama 

Department of Environmental Management did not intervene to address severe air and water 

pollution problems. The EPA was unable to address the problems at the landfill because there 

was no right of enforcement of state municipal solid waste regulations. 

26 Ala. Admin. Code r. 335-13-1-.03(12) (2010). 

"Ohio Admin. Code 3745:27-01(S)(23) (2010). 

"N.M. Code § 20.9.2.7(S)(9) (2010). 

29 30 Tex. Admin. rro';p~}:, 11" Jln\- 11" 1(11R"iil-n nOlm 

W: www.earthjustice.org 
226 


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Page 12 of 32 

The Congressional Research Service has found that S. 3512, which is identical to the 

discussion draft examined at the April lIth hearing, does not include federal enforcement 

backstop authority. 

7. Do you agree with that conclusion? 

Yes, the discussion draft does not include federal backstop authority. 

Much attention has been given to the conclusions reached by EPA in the 2000 

determination on coal combustion residuals, but very little has been paid to the study 

underlying it. That study was based on congressionally mandated criteria that went beyond 

risk and included criteria unrelated to health effects, such as the impact of regulation on 

the competitiveness of coal as a fuel source. 

8. In your view, would a scientific study of the health and environmental risks of coal 

ash, uninfluenced by congressional policy preferences favoring fossil fuels, 

demonstrate that subtitle C regulation of these wastes is merited? 

Yes, a scientific study that specifically evaluates the health and environmental risks of 

coal ash would conclude that subtitle C regulation is indeed warranted. The two reports to 

Congress completed pursuant to Sections 3001 (b)(3)(C) and 8002(n) ofRCRA in 198830 and 

199931 , considered many factors in addition to the health and environmental risks of coal ash. 

Specifically, Section 8002(n) mandated that the Reports to Congress consider cost, recycling, 

and the "impact of [disposal] alternatives on the use of coal." 

However, if one evaluates the health and environmental impacts of coal ash, particularly 

in light of the changing toxicity of the waste due to increased Clean Air Act pollution control 

requirements, its increasing volume, the lowering of the arsenic standard for drinking water, and 

the newly-developed leach test that more accurately determines the behavior of coal ash, it 

would be clear that subtitle C regulation is merited. 

In many important ways, the Reports to Congress in 1988 and 1999 are very seriously 

outdated. First, little was known about the actual universe of coal ash landfills and 

impoundments when the two reports were written. The 1999 report estimated that there were 

approximately 561 to 618 coal ash landfills and impoundments in total in the United States.32 

The EPA discovered in 2012, however, that there are actually 1,070 impoundments and 

approximately 335 landfills, an increase of about 2.5 times the number of disposal units.33 

Second, little was known about the condition of the waste units, including the employment of 

)0 U.S. EPA, Report to Congress on Wastes from the Combustion of Coal by Electric Utility Power Plants (EPA530-

SW-88-002), Febmary 1988 

)1 U.S. EPA, Report to Congress on Wastes from the Combustion of Fossils Fuels (EPA530-R-99-010), March 

1999, available at http://www.epa.govloswlnonhaziindustrialispecial/fossiVregs.htm. 

12 U.S. EPA, Report to Congress on Wastes from the Combustion of Fossils Fuels (EPA530-R-99-01 0), March 1999 

at 3-21. 

33 The utility industry self-reported information on coal ash disposal units in response to a 2010 Information 

Collection Request sent to all steam electric power generating plants by the EPA's Omce of Water. See 

http://water.epa.gov/sfitech/wastetcch/gui.9c/s.team-electric/index.cfm 
227 


82182.177

Page 13 of 32 

safeguards such as liners and monitoring. The absence of these safeguards increases considerably 

the risk and magnitude of harm, and EPA now has data revealing greater numbers of unlined and 

unmonitored dumps. Third, the issue of structural stability of coal ash dams was never mentioned 

in either Report to Congress, despite the fact that failures pose grave threats to health and the 

environment. The Reports to Congress also did not consider the widespread use of coal ash as 

"structural fill" in gravel pits, quarries and landfills, although the EPA now recognizes these 

practices as fonns of potentially dangerous waste disposal. Lastly, the issue of environmental 

justice is never addressed in the 1988 report, and the 1999 report mentions environmental justice 

in a single paragraph, raising only the potential impact on subsistence farmers and their 

children.34 

The outdated Reports to Congress also did not benefit from the considerable advance in 

research concerning coal ash. In the 25 and 14 years, respectively, since EPA's 1988 and 1999 

Reports to Congress were published, EPA studies and other scientific research have produced a 

growing body of evidence that overwhelmingly support a subtitle C regulation. Evidence in four 

areas in particular demonstrates heightened risk from coal ash to human health and the 

environment: (I) the increasing toxicity of coal ash due to greater capture of metals and 

improvement in the accuracy of leach tests; (2) an EPA risk assessment that describes extremely 

high human and ecological risks; (3) dramatically elevated health risks from arsenic exposure; 

and (4) the increasing number of documented cases of coal ash contamination. The first category 

is discussed in response to Question 9, below. The other three areas of concern are summarized 

below. 

1. EPA's Human and Ecological Risk Assessment of Coal Combustion Wastes 

Neither the Reports to Congress in 1988 and 1999 nor the regulatory determination in 

2000 were based on risk assessments for coal ash. In fact, thc EPA completed its first risk 

assessment for coal combustion waste in 2007 and updated this assessment in 2010. The EPA's 

Human and Ecological Risk Assessment of Coal Combustion Wastes (draft) (April 2010) 

provides confirmation of the high risks presented by the mismanagemcnt of coal ash disposed in 

landfills and surface impoundments.35 The risks described in this assessment are, in fact, 

extremely high when compared with the EPA's target level of protection of human health and the 

environment. 

The results of this risk assessment should have great bearing on the classification of coal 

ash as a subtitle C waste. For EPA's subtitle C listing determinations, the Agency defines the 

target level to be an incremental lifetime cancer risk of no greater than one in 100,000 (10-5

) for 

carcinogenic chemicals and a hazard quotient of 1.0 for noncarcinogenic chemicals.36 The 2010 

coal ash risk assessment found that at the 90t~ percentile, the management of coal ash in unlined 

or clay-lined landfills and impoundments results in risks greater than the listing criteria 

34 U.S, EPA, Report to Congress on Wastes from the Combustion of Fossils Fuels (EPA530-R-99-010), March 1999 

at2-5, 

35 See Office of Solid Waste & Emergency Response, EPA, Human and Ecological Risk Assessment of Coal 

Combustion Wastes 2-4 (draft) (Apr, 2010) [hereinafter 2010 Risk Assessment], 

36 Id. EPA uses these same target levels in other EPA listing decisions, See, e.g., Final Rule for Nonwas!ewatcrs 

from Productions of Dyes. Pigments, and Food Drug and Cosmetic Colorants \70 Fed, Reg, 9144), available at 

h!tp:llwww,epa,gov/wastes/law-rcgs/state/revision/ii-s/fr206,pdl) 
228 


82182.178

Page 14 of 32 

"generally used in EPA's listing detennination procedure.,,37 

Specifically, the EPA found: 

• 90th percentile risk estimates, for arsenic from unlined surface impoundmcnts are as high 

as I in 50 (2000 times EPA's target goal) and non-cancer effects estimates for cobalt 

were as high as 500 (500 times thc target hazard quotient);38 

• 90th percentile risk estimates, for arsenic, antimony and molybdenum that leak from 

unlined landfills, reveal individual lifetime cancer risk is as high as I in 2000, 50 times 

EPA's target goal.39 

Additional risks above the EPA's benchmark for both 90th and 50th percentile estimates 

for lined and unlined landfills and surface impoundments are summarized in the preamble to the 

2010 proposed rule and set forth in the risk assessment. These risks are from a long list of 

chemicals harmful to human health and the environment, including, selenium, boron and lead, in 

addition to the toxic metals mentioned above. 

Clearly the human health and ecological risks found by the EPA far exceed target levels 

for listing. However, in numerous ways, the EPA's risk assessment actually underestimates risks 

significantly. Despite the high risks acknowledged by the EPA, the risk asscssment nevertheless 

failed in several critical ways to assess fully and accurately the scope and scale of the risks posed 

by coal ash. Deficiencies of the 2010 assessment include the failure to consider multiple 

pathways of exposure, underestimation of synergistic risks oftoxic chemicals (cumulative 

impacts and concurrent exposurc), failure to evaluate risk from ingestion of hexavalent 

chromium, underestimation oflead exposure risks, underestimation of risks from fugitive dust40, 

failure to assess risk to fish and wildlife posed by the "attractive nuisance" of impoundments and 

contaminated wetlands, and failure to evaluate accurately the risk of cancer from arsenic 

exposure (discussed in more detail, below). 

2. Risk of Arsenic Exposure from Coal Ash 

Arsenic is onc ofthe most potent carcinogens known to man, causing mUltiple types of 

cancer in humans. Arsenic exceeding federal drinking watcr standards (maximum contaminant 

levels (MCLs)) or water quality standards has been found at a significant number of coal ash 

contaminated sites, often at very high levels.41 For example, recent monitoring data from an 

unlined South Carolina impoundment at the Santee Cooper Grainger Generating Station 

identified arsenic at 3000 parts per billion in the groundwater, a concentration 300 times the 

allowable level in drinking water. 42 Arsenic released to groundwater from coal ash dumps can 

flow to public well fields or private wells and poison drinking water. Further, the release of coal 

37 [d. 

J8 75 Fed. Reg. at 35,145. 

39 [d. 

40 See EPA, Inhalation of Fugitive Dust: A Screening Assessment ofthe Risks Posed by Coal Combustion Waste 

Land!ills, [draft]. (Sept. 2009) (Docket ID No. EPA-HQ-RCRA-2009-0640-0142). 

41 http://earthjustice.org/fcaturcs/campaignshn-harm-s-way-coal-ash-contalllinatcd-sites 

42 http://\\ww.In,,rtlebeachonlinc.comI20 13/05/06/34 73365!environmental istS-l0-ho!d-pu~html 
229 


82182.179

Page 15 of 32 

ash contaminants to surface water often results in the contamination of sediment at the bottom of 

rivers and reservoirs. 43 Over years, such deposits of arsenic can be substantial and result in 

periodic "eruptions" of the toxic metal into the water column causing violation of water quality 

criteria.44 Because arsenic is a potent carcinogen, it is essential to minimize its presence in our 

aquifers, reservoirs, lakes and streams. 

The EPA, however, significantly underestimated the cancer risks to human health from 

arsenic by relying on an outdated cancer slope factor in its 20 I 0 risk assessment. The cancer 

risks associated with arsenic ingestion were a principal factor in the risk assessment's conclusion 

that there are potentially significant risks to human health from coal ash disposal. 45 The two key 

exposure pathways considered in the human risk assessment were (I) ingestion of groundwater 

contaminated by migmtion ofa hazardous coal ash constituent, and (2) consumption offish 

caught by recreational fisherman from surface waters impacted by contaminants migrating from 

coal ash disposal sites. A major finding ofthe draft document was that "[ a]rsenic in certain types 

of[waste management units] managing certain types ofCCR may present lifetime cancer risks 

above EPA's range of concem to highly exposed groundwater users:,46 Similarly, the risk 

assessment concluded that lifetime cancer risks exceeding the EPA's range of concem were 

associated with ingestion of fish impacted by arsenic arising from surface impoundments. 

The risk assessment, however, reached its conclusions regarding these arsenic-associated 

risks by relying on a cancer slope factor for arsenic ingestion of 1.5 (mg/kg-dyl obtained from 

EPA's IRIS database. That slope factor, which was first published in IRIS in 1988, is based on a 

study solely of the prevalence of skin cancer in a population ingesting arsenic in drinking water. 

Its use has long been acknowledged by mUltiple offices of EPA and the broad scientific 

community to yield a gross underestimate of the actual cancer risk posed by inorganic arsenic 

ingestion. This is because inorganic arsenic, in addition to causing skin cancer, also causes 

cancer of tile lung and bladder in humans. For example, in 2000-2001, the EPA's Office of 

Water used independent estimates of arsenic-induced lung and bladder cancer, rather than 

estimates derived from the IRIS cancer slope factor, as a basis for lowering the maximum 

contaminant level for arsenic in drinking water from 50 ).lgfL to 10 f1gfL.47 

Although the 2010 risk assessment included a nonspecific acknowledgement that "some 

benchmarks in IRIS are quite dated,,,48 the narrative contained no explicit indication that use of 

the IRIS cancer slope factor for arsenic would substantially underestimate the cancer risk. By 

contrast, the "Regulatory Impact Analysis For EPA's Proposed RCRA Regulation Of Coal 

Combustion Residues (CCR) Generated by the Electric Utility Industry" (hereafler "RIA") 

issued by the EPA on April 30, 2010 did explicitly state that "the skin cancer based risk 

assessments no longer represent the current state of the science for health risk assessment for 

43 RuhL L, Vengosh. A. Dwyer. OS. Ilsu-Kim. H. Schwartz. The impact of coal combustion residue dlluent on 

water resources: a ,,"orth Carolina example, Em iron Sci Technol. 2012 i'iov 6:46(21): 12226-33. doi: 

10.1 0211es303263.\. Epub 2012 Oct 15. ami/able at 

http://sites.nicholas.duke.edu/avnencngoshit1lcs/20 1 I I08/es303263x I.pdf 

44 Id. 

45 2010 Risk Asscssment. at 4-40. 

46 Id. at ES-IO (stating that EPA's stated range of concern for excess cancer risk was 10'6 to 10-4 (page ES-2)). 

47 Arsenic in Drinking Water: Final Rule, EPA-8IS-Z-01. 66 Fed. Reg. 6976 (Jan. 22. 2001). 

48 2010 Risk Assessment. at 4-56. 
230 


82182.180

Page 16 of 32 

arsenic.,,49 Consequently, the RIA contained an impact analysis based in part on the findings of 

the National Research Council report "Arsenic in Drinking Water: 2001 Update," which yielded 

a combined cancer slope factor for lung and bladder cancer of26 (mglkg-drl-a factor 17.3 

times the IRIS cancer slope factor. 50 Further support for use of a upwardly revised cancer slope 

factor for inorganic arsenic ingestion arises from another recent document produced by the EPA 

National Center for Environmental Assessment entitled, ''Toxicological Review ofInorganic 

Arsenic In Support of Summary Infonnation on the Integrated Risk Infonnation System 

(IRIS).,,5l Although still under review by the EPA Science Advisory Board, this externally peerreviewed final draft derived an identical new oral cancer slope factor of25.7 (mglkg_d),l. 

Medical toxicologist Dr. Michael Kosnett52 and three scientists, Allan H. Smith, MD. 

PhD,53 Kenneth P. Cantor,s4 and Marie Vahter,55 who together served on the Subcommittee on 

Arsenic in Drinking Water of the Natural Research Council (for either or both of the 1999 and 

2001 National Academy of Sciences reports) drew the following conclusion from EPA's use of 

the outdated cancer slope factor of 1.5 (mg/kg-d),l: 

Because estimates of lifetime cancer risk increase linearly with the CSF [cancer 

slope factor], a direct consequence of the draft CCR risk assessment's utilization 

ofa CSF of 1.5 (mglkg-d)'l instead of26 (mglkg-drl is an underestimation of the 

cancer risk associated with each CCR disposal scenario by a factor of 17.3 (i.e. 26 

-7 1.5). Accordingly, a revision of the risk assessment utilizing the CSF of26 

derived in Appendix K4 of the RIA is indicated at this time. In addition to 

reinforcing EPA's current draft conclusions regarding the health risk of CCR 

disposal, use of the alternative CSF may elevate the risk associated with some 

additional disposal scenarios, such as ingestion of fish impacted by certain CCR 

landfills, into EPA's stated range of concern. 

3. Increasing Number of Documented Cases of Coal Ash Contamination 

One measurement of the increased risk to human health and the environment is the 

significant increase in the number of contaminated coal ash sites. In 1999, only seven 

contaminated sites ("damage cases") were documented in the Report to Congress. 56 Today, using 

the same criteria to define a documented "damage case," that number has risen to 203 coal ashcontaminated sites in 37 states - a 29-fold increase.57 At these sites, coal ash has poisoned 

drinking water, destroyed entire fish populations, killed scores of livestock, created myriad 

superfund sites, sickened families and destroyed livelihoods.58 These sites include leaks, major 

49 2010 R1A. at 256. & Appendix K4. 

50 See 2010 RIA, at 120, & Appendix K4, at 263-66. 

'51 National Center for Environmental Assessment, EPA. Toxicological Review qf Inorganic Arsenic 1n Support of 

Summary In/ormation all the Integrated Risk Information System (IRISj (EPAl635IR-101001) (Feb. 2010). 

52 See hitp:llyosemite.epa.gov/sab/SABPEOPI.E.NSF/WebPeople/KosnettMichaelryOpenDocument. 

53 Professor of Epidcmiolog). Schoul or Puhlk llcQlth, Uni\ ~rsity or Calif(xniu. f3crkclcy. 

54 Epidemiologist. Division of Cancer Epidemiology and Genetics, National Cancer Institute, Bethesda, MD. 

ss Professor. Institute of Environmental Medicine, Karolinska Institute. Stockholm. Sweden. 

56 65 Feder~l Register at 32224 (May 22. 2000). 

57 See http://carthjusticc.org!fcaturcs/campai!.!ns/in-harm-s-way-coal-ash-t.;;ontaminated-sites. 

58 See EPA, Proposed Rule, Coal Combustion Residuals from Electric Utilities, 75 Fed. Reg. 35,128 (proposed 
231 


82182.181

Page 17 of 32 

spills, and the pervasive contamination of underground drinking water sources, The 

contamination includes toxic metals at concentrations hundreds oftimes safe drinking water 

standards and involves chemicals hazardous to humans or aquatic life in small doses, including 

arsenic, cadmium, chromium, lead, mercury and selenium, The damage at most of the newly 

identified sites is largely unmitigated, and it represents present disposal practices, not just 

historic practices, Furthermore, these 203 contaminated sites do not even include those 

communities that have been inundated with airborne coal ash dust, of which there are dozens 

located throughout the U.S. Lastly, these cases of documented water contamination are likely to 

be only a small percentage of the coal-ash contaminated sites in the U.S., because most coal ash 

impoundments and many coal ash landfills do not conduct groundwater monitoring, so water 

contamination largely goes undetected. 

The graph below depicts the steep rise in the documentation of coal ash contaminated 

sites since the 1988 Report to Congress: 

250 

200 

150 

100 

50 

-

Determination 

Coal Ash-Contaminated Sites: Growth in Number of Sites 1993-2012 

:1000 US EPA 

Determination 

2001USEPA 2010USEPA 

Oam<lgeCase Proposed Rule 

Report 

EIP Damage Clse EPA lCR Data March JCR data July 2012 

Report December 2012 

2011 

2010 

1988 Report!o Congress & 1993 US EPA Regulatory Determination: U.S. EPA. Nov. 1988. Wastes 

from the Combustion of Coo! by Electric Utility Power Plants-Report to Congress. EPA-530-SW-88-002. U.S. 

EPA omce of Solid Waste and Emergency Response. Washington, DC; Final Regulatory Determination on Four 

June 21. 2010); Environmental Integrity Project (EI?), Earthjusticc, & Sierra Club, In Harm's Way: Lack of Federal 

Coal Ash Regulations Endangers Americans and their Environment (Aug. 26. 2010), available at 

http://cnvironmentulintcgritv.or!!/ncws l'eports/documents/INHAR\1SWAY FINAL3.J2Qf: EIP and Earthjustice. 

Out afControl: Mounting Damages from Coal Ash Waste Sites (Feb. 24, 2011). available at 

hUp://carthiusticc.org/sitcsidefault/l1lg"~!J.Lb.uH:)iffiPJ)j1slei-cipr!WNtou~:,Q.t.:'_control-fjnal.pdf; Office of Solid Vluste, 

EPA. Coal Combustion Waste Damage Case Assessments (July 9. 2007). 
232 


82182.182

Page 18 of 32 

Large-Volume Wastes From the Combustion of Coal hy Electric Utility Power Plants, 58 Fed. Reg. 42,466 (Aug. 9. 

1993) 

2000 US EPA Determination: Regulatory Determination on Wastes from the Combustion of Fossil Fuels: 

Final Rule, 65 Fed. Reg. 32.213 (May 22. 2000) 

2007 US EPA Damage Case Report: U.S. EPA. Coal Combustion Wasle Damage Ca,," Assessments (July 

9.2007) 

2010 US EPA Proposed Rule: Hazardous and Solid Waste Management System; Identification and 

Listing of Special Wastes; Disposal of Coal Combustion Residuals From Electric Utilities. 75 Fed. Reg. 35.128 

(June 21, 2010) 

EIP, Earthjustice et a!. Damage Case Reports Feb. & Aug. 2010: Environmental Integrity Project and 

Earthjusticc. Qut a/Control: Mounting Damages From Coal Ash Wasle Sites (Feh, 2010); Environmental Integrity 

Project, Earthjustice and Sierra Club. In Harm's Way: Lack "r Federal Coal Ash Regulations Endangers Americans 

and Their Environmenl (Aug, 20 I 0) 

EIP Damage Case Report December 2011: Environmental Integrity Project. Ris'y Business: Coal Ash 

Threatens America's Groundwaler Resources at 19 More Sites (Dec. 20 II) 

EPA ICR Data March 2012: U.S. EPA ICR Data 3/2012 (Response to rOIA Request to EPA) 

EPA ICR Data June 2012: U.S. EPA ICR Data 7/2012 (Response to FOIA Request to EPA) 

Lastly, if one employed the existing RCRA regulatory criteria for evaluating whether a 

solid waste should be listed as a hazardous waste, there is clear support for a listing under 

subtitle C. The EPA's hazardous waste listing criteria is set forth at 40 C.F.R. § 261.1I(a). 

Particularly relevant is Section 261.11 (a)(3)(i)-(xi). which establishes that the Administrator 

shall list a solid waste as a hazardous waste upon determining that the solid waste: 

contains any of the toxic constituents listed in appendix VIII [which includes arsenic, 

lead, cadmium, selenium 1 and, after considering the following factors, the Administrator 

concludes that the waste is capable of posing a substantial present or potential hazard to 

human health or the environment when improperly treated, stored, transported or 

disposed of, or otherwise managed: 

(i) The nature of the toxicity presented by the constituent. 

(ii) The concentration of the constitucnt in the waste. 

(iii) The potential of the constituent or any toxic degradation product of the 

constituent to migrate from the waste into the environment under the types of 

improper management considered in paragraph (a)(3)(vii) of this section. 

(iv) The persistence of the constituent or any toxic degradation product of the 

constituent. 

(v) The potential for the constituent or any toxic degradation product ofthe 

constituent to degrade into non-harmful constituents and the rate of degradation. 

(vi) The degree to which the constituent or any degradation product of the 

constituent bioaccumulates in ecosystems. 

(vii) The plausible types ofimproper management to which the waste could be 

subjected. 

(viii) The quantities ofthe waste generated at individual generation sites or on a 

regional or national basis. 

(ix) The nature and severity of the human health and environmental damage that 

has occurred as a result ofthe improper management of wastes containing the 

constituent. 

(x) Action taken by other governmental agencies or regulatory programs based on 
233 


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Page 19 of 32 

the health or environmental hazard posed by the waste or waste constituent. 

(xi) Such other factors as may be appropriate. 

Public interest groups, in their comments on the 2010 proposed coal ash rule, evaluated 

coal ash in detail using the above criteria and concluded that there is ample and sound 

justification for a subtitle C listing.59 

In the 2000 determination, EPA determined that coal ash contains more than 40 

toxic constituents, and that those constituents can degrade and migrate into groundwater. 

9. My understanding is that the leaching test used by EPA to complete the 2000 

determination has been criticized by EPA's Science Advisory Board and the 

National Academy of Sciences. Can you explain these criticisms and their 

significance? 

It is essential to note that the EPA's 2000 determination relied upon a leaching procedure, 

the Toxicity Characteristic Leaching Procedure (TCLP) test, which has since been demonstrated 

to be inaccurate and irrelevant for determining the toxicity of coal ash. Since 2000, a more 

accurate testing method, the Leaching Environmental Assessment Framework (LEAF), has 

confirmed the toxicity of coal combustion wastes. Beginning in 2006, the EPA's Office of 

Research and Development (ORD) published a series of three reports that examined the fate of 

mercury and other heavy metals in coal ash to ensure "that emissions being controlled in the flue 

gas at power plants are not later being released to other environmental media" such as drinking 

water sources, rivers and streams.60 The EPA describes the results of the ORD studies at some 

length in section I.E.2. of the preamble to the 2010 Proposed Rule.6l 

Central to these ORD studies is the rejection of the older leach test, the TCLP. 

Historically, estimating metal release from coal ash has been based on the results of a singlepoint extraction test, the TCLP, which was designed to simulate a single "mismanagement" or 

near-surface disposal scenario.62 For nearly two decades, however, the EPA Science Advisory 

59 See, Earthjustice et 01. Comments on Hazardous and Solid Waste Management System; [dentification and Listing 

of Special Wastes; Disposal of Coal Combustion Residuals From Electric Utilities; Proposed Rule, Docket ID No. 

EPA-HQ-RCRA-2009-0640 (Nov. I 9. 2010). available at 

http://carthiustice.org/sitcs/dcfault/filcsius cpa proposal disposal coal comb residue.pdf 

60 EPA, Office of Research and Development, Characterioalio/1 of Coal Combustion Residuesfrom Electric 

Utililies--Leaching and Characteri:ation Dala (EPAI600IR-091l51) at ii (Dec. 2009). available at 

http://www.epa.gov/nrmrlipubs!600r091511600r0915I.html(citing EPA, Characterioation ~fMercury- Enriched 

Coal Combustion Residualsfrom Electric Utilities Using Enhanced Sorbentsfor Mercury Control (EPA--j)OOI R06/00S) (Feb. 2006). available al http://www.epa.goY/ORDINRMRLlpubs/600r0600S/600r0600S.pdf); and EPA, 

Characterioation ~fCoal Combustion Residualsfrom Electric Utilities Using Wet Scrubbers for Multi-Pollutant 

Control (EPA--j)OO! R-0810771 (July 2(08). aWlilahie at http://www.epa.goy/nrmrllpuhs/600r08077/600r08077.pdf. 

61 75 Fed. Reg. at 35,139-42. 

62 Susan A. Thomeloe. EPA. et aJ.. Emiualing the Fate of Metals in Air Pol/ution Control Residuesfrom CoalFired Power Plants. 44 Envll Sci. Technol 7.351.7.351 (Aug. 31. 2010). available al 

http://pubs.acs.orgidoilpdlplus/lO.1021/es 1016558 [hereinafter Thorneloe. Emluating the Fale qf Metals] (citing C. 

Senior,S. Thorneloe. B. Khan. & D. Goss. Fate of Mercury Collectedji·om Air Pollution Control Devices, FnvlI. 

Mgmt 15-21 (2009); and J. Kilgroe et aI.. Control of Mercury Emissions/rom Coal-Fired Electric Utility Boilers: 

interim Report (EPA-600/R-OI-109) (Dec. 20(1) (prepared lor the Oftke of Research & Dev., Nat'l Risk Mgml & 

Research Lab.)). 
234 


82182.184

Page 20 of 

Board (SAB) has identified significant problems with the accuracy of the TCLP. In 1999, in 

fact, the SAB wrote a pointed letter to EPA Administrator Carol Browner, criticizing EPA's 

continued reliance on the TCLP, stating detinitively "it is time to make improvements:,6J In 

unequivocal terms, the SAB stated 'The Committee's single most important recommendation 

is that EPA improve leach test procedures, validate them in the field, and then implement 

them.,,64 In 2006, the National Academy of Sciences also acknowledged the inaccuracy of the 

TCLP and weighed in with explicit criticism of its use for testing coal ash.65 

Since at least 2006, the EPA itself has acknowledged the need for a more sensitive test 

that would vary the pH of the leaching solution because ofthe range offield conditions that coal 

ash is exposed to during disposal and reuse.66 For example, coal ash is frequently placed in 

contact with acid mine drainage and co-disposed with acidic coal refuse (pyrites). Both of these 

common disposal scenarios expose coal ash to a wide range of pH conditions that can accelerate 

leaching of toxic metals. Recognizing the importance of having a robust, mechanistic 

environmental assessment methodology, the EPA conducted a review of available methods, 

sought Science Advisory Board input, and ultimately selected the tiered assessment approach of 

the Leaching Environmental Assessment Framework (LEAF).67 

The EPA relies on LEAF for the latest testing ofa wide range of coal ash generated by 

plants employing air pollution controls. This is not the first time, however, that the EPA opted 

not to use the limited TCLP for a leach test evaluating waste material at the pH levels that the 

waste is actually likely to encounter when disposed. 68 Using the LEAF test, the EPA tested 73 

different types of coal ash from 31 coal-fired boilers.69 The results of the tests were dramatically 

different from the TCLP tests of similar types of coal ash. While TCLP test results rarely 

exceeded the toxicity characteristic for metals (the level at which a waste is deemed a 

"hazardous" waste70), the LEAF test confimled that coal ash can leach metals, such as arsenic, 

barium, chromium and selenium, at levels that far exceed federal thresholds established for 

hazardous waste. 

63 Letter from EPA, Science Advisory Board) to Carol Brovmcr, Administrator, EPA, Re: "Waste Leachability; The 

Need for Review of Current Agency Procedures" (Feb. 26,1999), available at 

\\ww.yosemite.cpa.govisabisabproduct.nsf/ .. ./$File/cecm9902.pdf. 

&4 Id (emphasis in original) 

65 Nan Research Council. Nafl Academics, Managing Coal Combustion Residues in Mines 123-29 (2006), 

available al hl1p://books.nap.edulcatalog.php?record_id"11592#toc. 

60 See EPA, Characleri:alion (1Coal Combustion Residuesfrom Electric Ulilities Using fVel Scrubbers 

for Mulli-Pollutant Col1lrol (EPAl600/R-08/077) (July 2008). available at 

http://www.epa.govlnrmrlipubs/600r080771600r08077.htm. and EPA, Characteri;alion of MercuryEnriched Coal Combustion Residuesfrom Electric Utilities Using Enhanced Sorbenlsfor Mercury Control 

(EPA-600/R-06i008) (Feb. 2006), available at http://www.epa.gov/nmlr1lpubsI600r06008/600r06008.pdf. 

67 Thomeloe. Evalualing Ihe Fate of Metals, at 7351. 

68 See 75 Fed. Reg. at 35,139, fn. II (referencing EPA's use of multi-pH leach testing in support oflisting a mercury 

bearing sludge from VCM-A production). 65 Fed. Reg. 67.100 and EPN600/R-02/o19 (Sept. 2001), 

Stabilization and Testing of Mercury Containing Wasles: Borden Catalyst. 

"75 Fed. Reg. at 35,139. 

7Q See 40 CYR * 26 Ll L 
235 


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Page 21 32 

EPA LEAF Test Results71 

Cd Cr Pb Mo So 

03 66 - 16- 24 - 6.9 -77 1.1-

1.8 2[0 66 [20 210 

<0.3. - <0. <0.2 -

7,300 3 - 35 

500 

5,OOn 5,000 

100 15 

concern for a metal when comparing the leach 

values represent \"ell concentrations; leachate 

dilution and attenuation processes that would occur in groundwater before leachate reaches a well are not accounted 

for, and s.o MeL and DWEL values arc compured to leaching concentrations here to provide context for the test 

results and initial screening. 

Table ES-3, Leach results for 5.4 ::; pH::; 12,4 and at "own pH" from evaluation of twenty 

FGD Ba B Pb 

2.4 - 67 NA 

6 to 100 15 200 51} 

DWEL 

Note: The shade is used to indicate where there could be a potential concern for a metal \vhen comparing the leach 

results to the MeL, DWEL, or Te. Note that Mel, and DWEL values represent \\leU concentrations; leachate 

dilution and attenuation processes that would occur in groundwater befine leachate reaches a well are not accounted 

for. and so MeL and DWEL values arc compared to leaching concentrations here to provide context for the test 

results and initial screening, 

Specifically, the EPA found, at the highest leach level for particular coal ash types: 

• Arsenic, a potent carcinogen, leached from fly ash at a concentration 1,800 times the 

federal safe drinking water standard, more than 3 times the threshold established for 

hazardous waste and over 76 times the level of previous leach tests (TeLP); 72 

Antimony, which damages the hemt, lung and stomach, also leached from fly ash at a 

71 EPA, Office of Research and Development, Characleri::ation of Coal Combustion Residues/rom Electric 

Utilities--Leaching and Charaeteri=atiol1 Data (El' Al600/R-09!151). at xiv (Dec. 2009), available at 

pttp:/lwY'I'\\;,cDa.!lov/nrmrllpubs/600r09151/600r09151.htm1 (tht.! highlighted numbers are identical to those 

~j~~l~:~e~~~(~~ ;%, ~4 ~~~rt) 

Tl 

0.7 

2-

0.24-

2 
236 


82182.186

Page 22 of 32 

concentration 1,800 times the federal safe drinking water standard and over 900 times the 

level of previous TCLP tests; 73 

• Chromium, which can cause cancer and stomach ailments, leached from fly ash at a level 

73 times the federal safe drinking water standard, over 1.5 times the threshold for 

hazardous waste, and 124 times the level of previous TCLP tests; 74 

• Selenium, which causes circulatory problems in humans and is a bioaccumulative toxin 

extremely deadly to fish, leached from fly ash at nearly 600 times the federal drinking 

water standard, 29 times the threshold for hazardous waste and nearly 66 times the level 

of previous TCLP tests; 75 and 

• Selenium also leached from FGD gypsum at 320 times the federal drinking water 

standard and 16 times the threshold for hazardous waste.76 

Previous leach data in the EPA's 1999 Report to Congress77 and test data produced by the 

utility industr/8 have never revealed such high concentrations of pollutants because they used 

single point leaeh tests that could not mimic the conditions under which coal ash is actually 

disposed. 79 It is important to note that the above data and the additional data found in the 

preamble ofthe proposed rule are not preliminary data. The data have been peer reviewed, and 

results were published in Environmenlal Science and Technology on August 30, 2010. 80 

Furthermore, the EPA indicates in the preamble that the very high leaching values found 

by using the LEAF test may still not accurately characterize the fullleaehing potential ofthe 

waste. The EPA admits there is a potential underestimation by the LEAF test because actual field 

conditions for coal ash disposal can exhibit a pH below the lowest bound of the test's pH range. S1 

In the 2000 determination, EPA found that there was sufficient evidence that 

adequate controls were not iu place at coal ash disposal sites. This was the case, in part, 

because the states that did require liners for wet impouudments did not apply that 

requirement to impoundments that were already in use. 

10. Under the discussion draft considered at the April 11 hearing, would liner 

requirements apply to impoundments that are already in use? 

73 Jd. 

74 Jd. 

75 ld. 

)6 ld. 

77 See. for example, U.S. EPA, Report to Congress on Wastes Ii'om the Combustion of Coal by Electric Utility 

Power Plants (EPA530-SW-SS-002), February 19S5 and U.S. EPA. Report to Congress on Wastes from the 

Combustion of Fossils Fuels (EPA530-R-99-010), March 1999, available at 

http://,,'Ww.epa.gov/osw/nonhadindustriallspecial/fossillregs.htm . 

78 See, for example, Electric Power Research Institute, Sustainable Management of Coal Combustion Products, 

Recent EPRl Research, October 16.2009, at page 8. submitted to Office of Management and Budget on October 16, 

2009, available at http://www.whitehouse.gov/ombI2050 meeting J OJ 6091. 

79 For a more detailed discussion of the EPA's LEAF testresults a;;d comparison to data from TCLP testing. see 

Attachment 7, Lisa Evans. Failing the Test: The Unintended Consequences '!fCon/rolling Ha:ardous Air Pollutants 

from Coal-Fired Power Plants (May 2010). 

80 Thomeloe, Evaluating the Fate qfMetals, at 7,351. 

81 75 Fed. Reg. 35140. 
237 


82182.187

Page 23 of 32 

No, the liner requirements set forth in Section 40 II (c )(1 )(A)(i) apply only to "new 

structures, and lateral expansions of existing structures, that first receive coal combustion 

residuals after the date of enactment ofthis section." Since coal ash impoundments are most 

often expanded via vertical, not lateral expansion, the liner requirement would apply to very few 

existing coal ash impoundments. Consequently, existing unlined impoundments would continue 

to operate without liners. The discussion draft contains no retrofit requirement. 

In addition, since under the discussion draft, states are free to define "structures" in any 

manner they see fit, it is possible that some states will choose to omit some types of coal ash 

impoundments from the definition of "structure." For example, states may exempt units of a 

particular size or height, or units that contain certain types of coal ash such as bottom ash, flue 

gas desulfurization sludge or other wastewater impoundments. Because the discussion draft does 

not define "structure," one cannot be sure how the requirement in Section 40 II (c)( I )(A)(i) will 

be applied. Lastly, there is nothing in the discussion draft to prevent a state from exempting all 

coal ash surface impoundments from the definition of structure. If states choose to do so, the 

EPA would have no recourse under the discussion draft. 

11. Does leaving these impoundments unlined pose risks to human health and the 

environment? 

Yes, leaving impoundments unlined poses serious risks to human health and the 

environment. In 20 I 0, the EPA released a national-scale risk assessment entitled Human and 

Ecological Risk Assessment of Coal Combustion Wastes82 that analyzed different coal ash 

disposal methods and the risks they pose to human health by releasing pollutants like arsenic to 

groundwater. The EPA concluded that "[t ]he assessment does confirm that there are methods to 

manage CCRs safely, although it calls into question the reliability of clay liners, especially in 

surface impoundments, and it points to very high potential risks from unlined swjace 

impoundments.,,83 The EPA found that the highest risk was posed by arsenic leaching from 

unlined surface impoundments where coal ash and coal refuse were co-disposed-a cancer risk 

of 1 in 50. 84 This risk is 2,000 times higher than EPA's target protection level for human health 

of a cancer risk no greater than I in 100,000.85 

In addition to arsenic, the 2010 Risk Assessment found that disposal of coal ash in 

unlined surface impoundments, particularly when coal ash is co-disposed with coal refuse, also 

results in risk to human health well above the EPA's benchmarks for numerous toxic 

constituents, including cadmium, lead, and selenium. Boron, cobalt, molybdenum, and 

nitrate/nitrate also showed elevated risk to human health.86 

82 Office of Solid Waste & Emergency Response, U.S. Envtl. Prot. Agency ('"EPA"), Human and Ecological Risk 

Assessment of Coal Combustion Wastes (draft) (Apr. 2010) [hereinafter 2010 Risk Assessment]. 

83 U.S. EPA, Hazardous and Solid Waste Management System; Identi!ication and Listing of Special Wastes; 

Disposal olCoal Combustion Residuals From Electric Utilities; Proposed Rule. 75 Fed. Reg. 35,128. 35.144 

(proposed June 21. 20 I O)(to be codified at 40 CFR Paris 257. 261. 264 et al.) (emphasis added) [hereinafter 2010 

Proposed Rule]. 

"Jd. at ES-7. 

85 ld. at 1-3: see also 2010 Proposed Rule, at 35,144. 

80 See generally 2010 Risk Assessment. For additional detail. see Environmental Integrity Project and Earthjustice. 

Coming Clean: What the EPA Knows about the Dangers of Coal Ash (May 2009), available at 
238 


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Unlined surface impoundments also pose devastating risks to ecological receptors. The 

EPA's 2010 Risk Assessment also reviewed impacts to individual organisms, and disposal 

scenarios where there was a risk of impacts to individual organisms were given a hazard quotient 

("HQ") greater than 1. 87 Unlined surface impoundments were estimated to have HQs well above 

I for several pollutants, indicating high risks to aquatic organisms-2,375 for boron, 22 for lead, 

13 for arsenic V, 12 for selenium VI, 6 for cobalt, and 3 for barium. 88 

FUl1hennore, most of the more than 200 coal ash damage cases involve the migration of 

toxic constituents to groundwater. 89 Comments submitted by Earthjustice in response to EPA's 

2010 Proposed Rule included Appendix F, which describes the scope of this migration at damage 

cases involving groundwater contamination.9o In many instances, the levels of constituents in 

the groundwater far exceed drinking water standards and the constituents in the groundwater 

travel far from the disposal site. Data indicate that constituents have also migrated from unlined 

landfills. 

12. Please describe some of the new evidence of risk from coal ash since the 2000 

determination? 

Since the 2000 determination. a plethora of new information has arisen detailing risks to 

human health and the environment from coal ash disposal practices nationwide, including 

additional damage cases, an EPA risk assessment detailing the risks of various exposure 

pathways, ratings showing many dams given "poor" structural stability scores, additional 

evidence of harm from fugitive dust, and many notice of intent to sue letters and lawsuits 

alleging harm to human health and the environment. 

l. Over 200 Coal Ash Damage Cases in 37 States 

Whereas the May 2000 determination had identified only 11 proven coal ash damage 

http://www.earthjustice.org/sites!dcfault/filesllibrary/reports/final-coming-clean-ejeip-report-20090507.pdf. 

87 2010 Risk Assessment. at ES-3. 

"2010 Risk Assessment, at 4-29. Tbl. 4-21; see also 2010 Proposed Rule, 75 Fed. Reg. at 35,146; U.s. EPA, "What 

Are the Environmental and Health Effects Associated with Disposing of CCRs in Landfills and Surface 

Impoundments?" (undated), http://rfllibrary.tiles.wordpress.comi20 I 0/05/epa-hq-rcra-2009-0640-0004.pdf (cited in 

2010 Proposed Rule, 75 Fed. Reg. at 35.146). 

89 See Environmental1ntegrity Project (EIP). Risky Business: Coal Ash Threatens America's Groundwater 

Resources at 19 More Sites (Dec. 12.2011); U.S. EPA. Proposed Rule, Coal Combustion Residuals from Electric 

Utilities, 75 Fed. Reg. 35.128 (proposed June 21, 2(10); Environmental Integrity Project (EIP), Earthjustice, & 

Sierra Club,In Harm's Way: Lack afFederal Coal Ash Regulations Endangers Americans and their Environment 

(Aug. 26, 2010), available at 

http://environmentalintegrity.orginews_reports/documents/INHARMSWA Y _FINAU.pdf; EIP and Earthjustice, 

Out of Control: Mounting Damages from Coal Ash Waste Sites (Feb. 24, 201 I), available at 

http://carthj ustice.orgi sites! default/Ii lesil ibrary I reportsl ej -eipreportout -of-control-linal. pd f; Omce of So lid 

Waste, EPA, Coal Combustion Waste Damage Case Assessments (July 9, 2007). 

9() Comments of Earth justice, et al.. U.S, EPA, Hazardous and Solid Waste Management System; Identifieation and 

Listing of Special Wastes; Disposal of Coal Combustion Residuals From Electric Utilities; Proposed Rule, 75 Fed. 

Reg, 35.128.35.144 (proposed June 21. 2010) (to be codified at 40 eFR Parts 257, 261, 264 et al.) (Docket ID No. 

EPA-HQ-RCRA-2009-0640), at Appendix F: J. Russell Boulding, "Analysis of EPA and ElPiEarthjustice Damage 

Cases: The Extent of Damage from eCR Disposal is Significant, Pervasive and Growing," 
239 


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cases and 25 potential damage cases,91 additional assessments using EPA data and 

documentation submitted to EPA from public interest groups have brought the current list of coal 

ash damage cases to over 200.92 

2. Risk Assessment Shows Exposure to Cancer-Causing Chemicals and Other Toxic Pollutants 

through Groundwater and Surface Water Pathways 

The EPA released a draft risk assessment of coal combustion wastes in 2010 assessing 

exposure pathways to humans and the environment. Among the tindings in this report was the 

conclusion that the cancer risk to humans from exposure to arsenic in groundwater from an 

unlined coal ash impoundment that also disposes of coal refuse can be as high as I in 50, 

compared to EPA's target threshold of no greater risk than I in 100,000.93 The EPA noted in the 

preamble to the 20 I 0 Proposed Rule that the Agency's Human and Ecological Risk Assessment 

of Coal Combustion Wastes (April 20 I 0) provides "further contirmation of the high risks 

presented in the mismanagement ofCCRs disposed in landfills and surtace impoundments.,,94 

The 2010 risk assessment was discussed at length, above, in response to Question 8. 

3. Many Dams Given "Poor" Ratings for Risk of Structural Breach 

In the aftermath onhe TVA Kingston coal ash disaster, EPA has been assessing dams at 

coal ash impoundments, and an alarming number of dams that are likely to cause "high" or 

"significant" damage to lives and property have also been given "poor" ratings for structural 

integrity. Following an Information Collection Request from EPA, most coal ash impoundments 

have been given hazard ratings (less than low, low, significant, or high) to represent potential 

risks to the community if they were to breach: a "significant" hazard rating represents a 

possibility of property, infrastructure and environmental damage; and a "high" hazard rating 

represents a probable loss of human life should the impoundment fail. 95 EPA then had experts in 

dam stability visually assess the high and significant hazard dams (as well as some less than low 

or low hazard dams) and rate the structural integrity of each as either "satisfactory," "fair," 

91 Office of Solid Waste, u.s. EPA, Coal Combustion Waste Damage Case Assessments 2-3 (July 2007), 

http://graphics8.nytimes.com/packagcs/pdfinationaIl07sludge_EPA.pdt: 

92 See Environmental Integrity Project (EIP). Risky Business: Coal Ash Threatens America's Groundwater 

Resources at 19 More Sites (Dec. 12, 201l); U.S. EPA. Proposed Rule, Coal Combustion Residuals from Electric 

Utilities. 75 Fed. Reg. 35,128 (proposed June 21,2010); Environmental Integrity Project (EIP), Earthjustice, & 

Sierra Club. In Harm's Way: Lack of Federal Coal Ash Regulations Endangers Americans and their Environment 

(Aug. 26, 2010), available at 

hltp:iienvironmentalintegrity.orginewsJeportsidoeuments/INHARIVISWA Y _FINAL3.pdf; EIP and Earthjustice, 

Out of Control: Mounting Damages Hum Coal Ash Waste Sites (Feb. 24. 2011), available at 

hltp:iieartljj ustice.orgisitesi defaultlfi les/library IrepoI~s! ej -eipreportout -0 t:contro 1-final .pdt; Office of So lid 

Waste. EPA, Coal Combustion Waste Damage Case Assessments (July 9, 2007). See generally Earthjustice, In 

Harm's Way: Coal Ash Contaminated Sites, http://earthjustice.orgifeaturesicampaigns/in-harm-s-way-coal-ashcontaminated-sites. See also U,S. EPA, Information Request Responses tram Electric Utilities (Jan. 13,2012), 

http://www.epa.gov/osw/nonhazlindustrial/speciallfossillsurveysi (follow link to Database Results (Excel)). 

93 Office of Solid Waste & Emergency Response, U.S. Enyt!. Prot. Agency ("EPA"), Human and Ecological Risk 

Assessment of Coal Combustion Wastes (draft), at ES-7 (Apr. 2(10). 94 75 Fed. Reg. at 35.144. 

os U.S. EPA, Ha=ardous and Solid Waste Management System; Identification and Listing a/Special Wastes: 

Disposal o/Coal Combustion Residuals/rom Electric Utilities. Proposed Rule. 75 Fed. Reg. 35,128,35,130 (Jun. 

21,2010). 
240 


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Page 26 of 32 

"poor," or "unsatisfactory.,,96 

Although assessments are still ongoing, EPA has assessed 492 coal ash impoundments.97 

Of those 492, more than one third - 144 dams - have been given a "poor" rating for structural 

integrity.98 Of these 144 poor-rated dams, II are high hazard and 69 are significant hazard 

dams. 99 At least one utility was asked to make "urgent" repairs relating to structural stabilit6; 

after inspection of the dam at Dominion's Chesapeake Energy Center in Chesapeake, V A.I 0 In 

addition, a high hazard dam that had previously breached was again found in poor condition at 

the Indianapolis Power and Light Company's Eagle Valley Generating Station in Martinsville, 

Indiana. lol 

4. Risks to Human Health and the Environment from Fugitive Dust 

In 2009, the EPA completed a screening assessment of the inhalation risks posed by 

disposal of coal ash in landfills to determine whether the National Ambient Air Quality 

Standards (NAAQS) for particulate matter could be violated at such landfills. Entitled, 

"Inhalation of Fugitive Dust: A Screening Assessment of the Risks Posed by Coal Combustion 

Waste Landfills," EPA's assessment found that daily cover was necessary to prevent violations 

ofNAAQS at coal ash disposal sites.lO: The report found that daily dust controls, which EPA 

regulations do not currently require, are necessary to control the "excess levels of particulates" 

resulting from coal ash landfi II operations.I03 

Particle pollution, especially fine particles, contains microscof,ic solids or liquid droplets 

that can lodge deep into the lungs and cause serious health problems. 04 Numerous scientific 

studies have linked particle pollution exposure to a variety of problems, including decreased lung 

function, asthma, bronchitis, irregular heartbeat. and premature death in people with heart or 

lung disease. 105 

5. Additional Evidence of Risk Detailed in Citizen Lawsuits and Notice oflntent to Sue Letters 

Several lawsuits and notice of intent to sue letters filed by citizens throughout the country 

are alleging harms caused by pollution from coal ash disposal sites and have also introduced new 

'6 U.S. EPA, Coal Combustion Residuals Impoundment Assessment Reports (last updated Apr. 10,2013), 

http://www.epa.gov/osw/nonhazlindustriallspeciallfossillsurveys2/index.htm. 

" Id (Click on "Summary Table for Impoundment Reports (XLS)"j. 98 !d 

qo ld 

100 Dam Safety Assessment available at 

h np:! /\\ ,\ow .epa.go," /OS\ vI nonhazli ndu stria1ispecial/fossi 1/suT\'e\ s2lindex.htm. 

!Ol Dam Safety Assessment available at 

tmp://\\"\\w.epa.!Un.Los\vinonhaziin@striallspcciallfbssi1/surve\'s1/index.htm. 

102 U.S. EPA, Inhalation of Fugitive Dust: A Screening Assessment of the Risks Posed by Coal Combustion 

Waste Landfills (draft). 11 (Sept. 2009) (ORCR Docket lD No. EPA-HQ-RCRA-2009-0640-0142 (tiled 

May 13,2010). 

103 fd 

104 U.S. EPA, Fine Particle (PM,,) Designations, \\'\Vw.epa.gov.lpmdesignationslbasicinfo.htm (last visited 

May 20. 2013). 105 1

d. 
241 


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Page 27 of 32 

evidence of the risks posed by coal ash disposal. 

For example, the Environmental Integrity Project (EIP) and the University of Maryland 

Environmental Law Clinic sent a notice of intent to sue letter to GenOn on behalf of Defenders 

of Wildlife, Chesapeake Climate Action Network, PatLLxent River Keeper, and Sierra Club for 

Clean Water Act violations at the Brandywine Coal Ash Landfill. Following the notice letter, the 

Maryland Department of the Environment (MDE) filed suit itself against GenOn. 106 In January 

2013, MDE and GenOn filed a consent decree in federal court requiring GenOn to clean up 

pollution at three coal ash disposal sites - the Faulkner Landfill, the Brandywine Landfill, and 

the Westland Landfill.lo7 The agreement requires GenOn MidAtlantic to pay a civil penalty of 

$1.9 million to MDE and requircs cleanup of groundwater and surface water, use of the best 

technology available to clean up discharges, evaluation of drinking well impacts and, if 

impacted, clean up of well water, and submission of a fugitive dust plan. I08 

In addition, after the Southern Environmental Law Center filed suit against South 

Carolina Electric & Gas on behalf of the Catawba Riverkeeper for violations of environmental 

laws at the Wateree Station, the parties reached a settlement that requires SCE&G to remove its 

coal ash from coal ash ponds and transport it to lined and properly engineered landfills. I 09 

Residents of Juliette, Georgia have also filed a mass tort case in January 2013 against 

Georgia Power Co., alleging that coal ash from two coal ash impoundments at the Robert W. 

Scherer coal plant has made them sick and constituted negligence, nuisance, and trespass by 

"invad[ing]" their homes and exposing them to "extremely toxic and hazardous substances 

released to the air, soil, and groundwater."llo 

Also, in May 201 I the EIP and Public Justice sent FirstEnergy Generation Corp. a notice 

of intent to sue on behalf of the Little Blue Regional Action Group (LBRAG) for groundwater 

and surface water pollution caused by the largest coal ash impoundment in the nation, the Bruce 

Mansfield Plant's Little Blue Run Impoundment. 111 LBRAG alleged harms that inclUded 

violations of the Resource Conservation and Recovery Act, and Pennsylvania Clean Streams 

106 Press Release, Env!1. Integrity Project, et aI., Groups Support MDE Settlement Clean Up GenOn's Toxic Coal 

Ash Pollution in Charles, Montgomery, and PG Counties (Jan. 14,2013). 

http://ww\v.environmentaiintegritv .ore/news rcports/documents/O 1141 J Oen()n FIN ALCoalAshsettlementjointne 

wsrelease.pdt: 

107 Consent Decree, State of Md. Dep't of the Envt. v. GenOn MD Ash Mgmt., LLC, Civil Action Nos. 8:II-CV01209-PJM, 8: 1O-CV-00826-PJM, 8: 12-CV-[ 1 (Jan. 2, 2013). 

http:lh\"ww.environmcntalintegritv;.qmlnc\\·s reportsLdocumcntsl2013 01 02 71 ~ I ConsentDccrcc.pdf. J08 / d. 

109 Catawba Riverkeeper, SCE&G and Catawba Riverkeeper Reach Setlement On Coal Ash Storage, 

http://www.catawbariverkeeper.orgiissues/ coal-ash-II sce-g-and-catawba-ri verkceper-reach-settl ement-on-coal-ashstorage (Aug. 20. 2012). 

llO Kristen Lombardi, etr. for Public Integrity, "As EPA Delays New Coal Ash Rules, Residents Turn to the Courts 

lor Relief;" h!lJl.:tl\ww .Qubl i cintcQritv .orgl20 I 310212211 2223!c!,? -delavs:!lew-coal-ash-r\!ks-rc;;jgents:t\lD]::£Q.urtsLetter from Lisa Widawsky Hallowell, Attorney, Enyt!. Integrity Project to Anthony Alexander. President, 

FirstEnergy Corp .• Re: Notice of Violations and Notice of Intent to Sue for Violations at the Little Blue Run Coal 

Ash Impoundment (May 30. 201 I) 
242 


82182.192

Page 28 of 32 

Law, and the federal Clean Water Act. 1l2 In July,just before the end of the 60-day notice period 

under the Clean Water Act and Clean Streams Law, the Pennsylvania Department of 

Environmental Protection (DEP) filed suit in federal court against f.irstEnergy and 

simultaneously proposed a consent decree. 113 In the lawsuit, DEP recounted extensive evidence 

of the release of pollutants from the impoundment, concluding that: 

Constituents contained in the solid waste disposed of in the Impoundment may 

present a potential that human health and environmental receptors would be 

exposed to a risk of harm, in the near term and the future, if remedial action is not 

taken. These conditions 'may present an imminent and suhstantial endangerment 

to health or the environment,' as that term is used in Section 7002(a)(J)(B) of 

RCRA,42 U.S.c. § 6972(a)(I )(B).114 

The settlement requires closure of the impoundment, imposes an $800,000 penalty and 

includes stipulated penalties for failure to comply with various surface water, groundwater, and 

air monitoring requirements contained in the consent decree. 115 

Additional examples of additional citizen lawsuits and notice letters of intent to sue 

(NOls) include a lawsuit filed by the Southern Environmental Law Center on behalf of the Cape 

Fear River Watch, Sierra Club, Waterkeeper Alliance, and Western North Carolina Alliance to 

require cleanup of groundwater contamination from 14 unlined North Carolina coal ash ponds,116 

a lawsuit filed by the Waccamaw Riverkeeper against Santee Cooper for arsenic seeping into 

groundwater from coal ash ponds at the Grainger coal plant, 117 and an NOI tiled by the Catawba 

Riverkeeper against Duke Energy for illegally discharging arsenic, cobalt, boron, barium, 

strontium, manganese, zinc, and iron into Mountain Island Lake from the Riverbend Plant's 

unlined coal ash lagoons.ll8 

13. Given this evidence, in your view, are enforceable federal requirements necessary to 

protect human health and the environment from this waste? 

Yes. 

14. Should those requirements meet a legal standard of protection, such as the current 

standard for municipal solid waste - protection of human health and the 

environment? 

112 I

d 

113 Consent Decree, Commonwealth ofPa, Dcp't Enytl. Prot. y, FirstEncrgy, Civil Action No. 2:12-cy-0I061-NBF, 

at 5 (Dec. 14,2012). 

114 Commonwealth ofPa. Dep't Enytl. Prot. v, FirstEnergy, Civil Action No, 2:12-cv-OJ061-NBF (July 27, 20(2). 

115 Consent Decree, Commonwealth ofPa. Dcp't Envtl. Prot. v. FirstEnergy_ Civil Action No, 2:12-cv-0106J-NBF 

(Dec. 14.2012). 

116 Press Release. Groups in Court to Stop Groundwater Contamination from Toxic Coal Ash Waste (Jan, S, 2013), 

http://w\yw,southerncnvironmenLorglnc,,.;sroom/press releases/groups in court to stop groundwater contaminati 

on from toxic coal ash \\'astc. 

111 Sammy Fretwell, "Santee Cooper Plant Discharges Spark Federal Lawsuit," The State (Apr. 29, 2013) available 

at .!illJl:! I, ''IV''. thcstate. com/20 13/04/29/27483 09/santee-coorer-coal-pl ant -di schames. html. 

118 Nick Needham, "Riverkeepcl': Duke Energy Allowing Toxic Leaks into Catawba River," wbtv.com, (Mar. 26, 

2013). http://www.wbtv.com/storv!21 707969/lawsliit-dukc-cncn!s-alJo\\'ing-to;sic~!caks~into-catawba-river. 
243 


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Page 29 of 32 

Yes, any bill addressing coal ash should contain a standard of protection that is at least as 

stringent as the federal protective standard governing municipal solid waste landfills, which 

requires the protection of human health and the environment. Without a federal protective 

standard, Congress cannot guarantee that every community in every state is provided with the 

same protection from toxic releases. Absent a protective standard, states may implement permit 

programs that fail to protect the health and environment of American communities. The intent of 

RCRA is to ensure the safety of all citizens from unsafe disposal of solid and hazardous waste. 

Whether under subtitle C or subtitle D, the intent is to create a baseline of federal requirements 

that will protect the nation's health and environment. The discussion draft radically amends 

RCRA to abandon this critical goal of national consistency and baseline protection, and it would 

allow states to implement permit programs without meeting any federal standard. As stated 

earlier in this response, many states have chosen not to regulate coal ash or to regulate its 

disposal very inadequately. The discussion draft would not change the status quo. 

15. Would the discussion draft considered at the hearing hold state coal ash permit 

programs to such a legal standard of protection? 

No, the discussion draft would not hold state coal ash permit programs to any legal 

standard of protection. As the CRS Report (twice) explained, the absence of a standard of 

protection is "unique among all federal environmentallaw.,,119 The CRS report explained: 

Federal standards promulgated under RCRA include directive from Congress to 

EPA that the regulatory criteria meet a particular standard of protection. When 

those standards are required to be implemented using a permit program, that 

directive is that the standards be those neccssary to protect human health and the 

environment. There is no explicit directive in Section 4011 that Permit Program 

Specifications, assumed to be the equivalent of federal standards, achieve a 

certain level of protection. The absence of any directive or indication that the 

program has some objective to achieve a standard of protection is unique among 

all federal environmentallaw. 11o 

When the Tennessee Valley Authority coal ash impoundment in Kingston, 

Tennessee, failed, it released 5.4 million cubic yards of toxic sludge, blanketing the Emory 

River and 300 acres of surrounding land, and creating a Superfund site that could cost up 

to $1.2 billion to remediate. The sludge from that spill was removed and disposed of in a 

municipal solid waste landfill in Perry County, Alabama, over the protests ofloeal 

residents. There are reports that residents became sick from foul smells and off-gassing 

from the waste. 

16. What are some of the issues residents around the Perry County, Alabama landfill 

have experienced? 

Beginning in 2009, approximately 4 million tons of coal ash were excavated from the 

119 2012 CRS Report at 23. 120 Jd. 
244 


82182.194

Page 30 of 32 

spill site in Harriman, Tennessee and deposited in the Arrowhead Landfill in Uniontown, 

Alabama. Because of poor dust and odor suppression during the dumping ofthe TV A ash, 

residents living near the Arrowhead Landfill suffered serious health problems, including 

respiratory illness (including irritation of the upper respiratory tract), headaches, dizziness, 

nausea and vomiting from the fugitive dust and emission ofunhcalthy levels of hydrogen sulfide. 

Several homes are within 100 feet of the landfill where the dumping occurred. Residents 

complained that fugitive dust from the facility contaminated their homes, porches, vehicles, 

laundry and plantings. In addition, runoff from the landfill into roadside ditches running through 

residential and agricultural areas wcre found to contain arsenic at more than 80 times the health 

standard. Despite many hundreds of acres of available landfill space distant from residential 

properties, the coal ash was stacked very close to homes in a large mound 60 feet high. 12I 

Uniontown is located in Perry County, Alabama's poorest county, where over 35 percent 

of the population fall below the poverty line. In Uniontown, 88 percent of residents are AfricanAmerican and almost half(45.2 percent) live in poverty. The median income in Uniontown is 

$17,473, and the unemployment rate is 17 percent. The population in the census blocks 

surrounding the landfill range from 87 to 100 percent African-American. In January 2012, 54 

poor black residents of Perry County filed a civil rights complaint against the Alabama 

Department of Environmental Management pursuant to Title VI of the 1964 Civil Rights Act. 

The complaint alleged that Alabama environmental regulators violated the civil rights of 

predominantly poor and black residents by renewing the permit issued to operators of the 

landfill. 

In addition, since 2009, numerous lawsuits were filed on behalf of residents alleging 

violations of federal environmental laws, including the Clean Air Act, Clean Water Act and the 

Resource Conservation and Recovery Act. Most of the actions were unsuccessful due to the 

bankruptcy of the landfill's owners. In 2010, Uniontown residents filed a lawsuit, Abrahams et 

al. v. Phill-Con Services, LLC et aI., in U.S. District Court for the Southern District of Alabama, 

against the landfill's operator, asserting claims including negligence, nuisance and trespass 

resulting from construction and operation of the landfill. 

17. My understanding is that Alabama regulators allow the use of coal ash as daily 

eover at the landfill. Did the decision to allow the usc of coal ash as daily cover 

exacerbate or mitigate issues of concern for the residents of Perry County? 

In 2009, nothing in the permit for coal ash disposal in the Arrowhead Landfill required 

the owner or operator of the landfill to take any specific precautions to eliminate the threat of 

airborne ash. While the permit did require placement of "daily cover," the permit specifically 

allowed the use of coal ash as an "alternative daily cover material" to cover the TV A ash. 122 

Consequently, it would have been permissible for coal ash to be placed on the TVA ash as 

"cover." Clearly, if this occurred, it would not have been effective in controlling fugitive and 

121 Photographs of the residences and landfill can be viewed at the website of photographer, Carlan Tapp: 

http://'Aiww.carlantapo·com/livinginash/index,html 

122 See Section lIT.H.2. of the Pennit Modification for the Arrowhead Landfill, dated July 20,2009, 

http://www.arrowhcadlandfiIJ.com/SoJid%20Waste%20Pcrmit.pdf. 
245 


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Page 31 of 32 

toxic dust blowing from the landfill. However, it is not known if the landfill owners actually 

used coal ash as cover. It is known, nevertheless, that residents of Uniontown complained for 

years of dust and odors coming from the landfill into their homes. 

Furthermore, there were several additional significant permit deficiencies that diminished 

the level of protection of residents from coal ash disposed in the Arrowhead Landfill. These 

included: 

I. The Operating Permit's Groundwater Monitoring Parameters Were Inadequate to Protect 

Health and the Environment in Perry County 

Groundwater monitoring parameters for the Arrowhead Landfill do not include several 

contaminants found commonly in leachate generated by coal ash disposal. According to Table 

IV.3 of the Permit Modification for the Arrowhead Landfill, the parameters to be monitored on a 

semi-annual basis are those parameters listed in Appendix I of Chapter 335-13-4 of the Alabama 

Administrative Code. These parameters do not include boron, manganese, molybdenum or 

sulfate, four very common coal ash pollutants. It is critical to monitor for these common coal ash 

contaminants, because these chemicals are often the first to leach from ash, thereby constituting 

an early warning that that a landfill is leaking. Addressing releases immediately can prevent 

more dangerous contaminants, like arsenic, from migrating off-site. 

2. The Operating Permit's Post-Closure Requirements Fail to Require At Least 30 Years of 

Post-Closure Monitoring 

According to Section VIII of the Permit Modification for the Arrowhead Landfill, the 

length of the period of post-closure groundwater and surface water monitoring is left to the 

discretion ofthe Alabama Department of Environmental Management (ADEM). It is essential, 

however, for the protection of the community that at least 30 years of post-closure groundwater 

and surface water monitoring be required at the Arrowhead Landfill. According to the EPA's 

Human Health and Ecological Risk Assessment for Coal Combustion Wastes, the risk of 

leachate migration and contamination of underlying groundwater increases with time. Therefore 

monitoring must continue for a substantial period after disposal ends to make sure that pollutants 

do not migrate from the landfill and contaminate the underlying groundwater or surface water. 

According to the operating permit and Alabama regulations, the ADEM has authority to further 

decrease the length of the post-closure care period. See ADEM Rule 335-13-4-.20(3)b. 

18. Have those residents been able to address these issues to protect their air and water? 

No, the residents to date have not been able to adequately address these issues. Residents 

have contacted the EPA and ADEM about the problems they faced to no avail, according to their 

attorney, David Ludder. The EPA did not sufficiently address complaints regarding fugitive dust, 

odors, potential exposure to radiation, contaminated runoff, and the need for increased 

groundwater monitoring. 

19. Have they been able to recover damages for the impairment of their air and water? 
246 


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Page 32 of 32 

Limited damages covering the period of coal ash disposal operations are expected to be 

paid shortly due to a settlement of a case filed in 20 I O. 

20. Does the experience of residents around the Perry County landfill suggest that 

municipal solid waste landfills, operating under state programs in accordance with 

the MSW disposal criteria under RCRA, can safely accept coal ash? 

No. The damage that occurred to the health and well-being of residents living near the 

Arrowhead Landfill in Perry County illustrates the great risk of relying on state municipal waste 

regulations to protect citizens near coal ash dumps. The Alabama municipal solid waste landfill 

regulations were ill equipped to deal with the fugitive dust and hydrogen sulfide emissions from 

the landfill. Furthennore, while the immediate air hazards have abated because the coal ash 

dumping has stopped, long tenn threats posed by the disposal of the 4 million tons of ash remain. 

Alabama's municipal solid waste groundwater monitoring parameters still do not include the 

most common coal ash contaminants, and post-closure groundwater monitoring can be 

tenninated at the discretion of state regulators. Thus, contamination of the underlying aquifer 

could occur without detection and future problems may escape detection because of the early 

tennination of monitoring. 

The Arrowhead Landfill is a subtitle D solid waste landfill permitted by the Alabama 

Department of Environmental Management and governed by Alabama law. In 2009, Alabama 

did not have any laws specific to coal ash disposal. When things went wrong, and the health of 

residents was being hanned, the State did not take appropriate action, and the EPA claimed it had 

no authority. There is reason to believe that future coal ash disposal in the landfill or in other 

municipal solid waste landfills -will encounter similar problems. 

Thank you for this opportunity to provide additional information on this important issue. 

Respectfully submitted by: 

Lisa Evans 

Senior Administrative Counsel 

Earthjustice 
247 


82182.197

Mr. Jack Spadaro 

Mine Safety & Health and 

Environmental Expert 

P.O. Box 442 

Hamlin, WV 25523 

Dear Mr. Spadaro: 

April 29, 2013 

Thank you for appearing before the Subcommittee on Environment and the Economy on Thursday, April 11, 

2013, to testify at the hearing on a discussion draft entitled "The Coal Ash Recycling and Oversight Act of2013." 

Pursuant to the Rules of the Committee on Energy and Commerce, the hearing record remains open for ten 

business days to permit Members to submit additional questions for the record, which are attached. The format of your 

responses to these questions should be as follows: (I) the name of the Member whose question you are addressing, (2) the 

complete text of the question you are addressing in bold, and (3) your answer to that question in plain text. 

To facilitate the printing of the hearing record, please respond to these questions and requests by the close of 

business on Monday, May 13, 2013. Your responses should be e-mailed to the Legislative Clerldn Word format at 

Nick.Abraham@maiLhouse.gov and mailed to Nick Abraham, Legislative Clerk, Committee on Energy and Commerce, 

2125 Rayburn House Office Building, Washington, D.C. 20515. 

Thank you again for your time and effort preparing and delivering testimony before the Subcommittee. 

Chairman 

Subcommittee on Environment and the Economy 

cc: The Honorable Paul Tonka, Ranking Member, 

Subcommittee on Environment and the Economy 

Attachment 
248 


82182.198

The Honorable Henry A. Waxman 

Since 1978, coal waste impoundments have been covered by regulations that you helped develop to 

protect surrounding communities and ensure their safe operation. In the 2010 proposed rule on coal 

combustion residuals, EPA proposed applying those regulations to coal ash impoundments as well. 

1, How are the threats to safety and the environment posed by coal ash impoundments similar to 

those posed by coal slurry impoundments? 

You testified that the MSHA requirements and OSM requirements in effect since 1978 have helped 

to reduce the incidence of serious and fatal dam failures of coal slurry impoundments. 

2. Would those regulations make coal ash impoundments safer? 

3. If applied at the time, would the regulations have provided warning of dangerous conditions at 

TVA's Kingston Fossil Plant and perhaps prevented the massive failure? 

Following the Kingston disaster, EPA hired professional engineers to assess the stability of many of 

the nation's largest coal ash impoundments. During the period from 2009 to 2013, EPA contractors 

inspected over 400 coal ash dams, and their assessment reports are not publicly available. 

4. Do those assessment reports raise concerns about the stability of these impoundments? 

Your testimony cites the incidence of "poor-rated" dams in assessment reports by EPA contractors. 

Many of these dams are rated "poor" because of the absence of a geotechnical engineering analysis 

that assesses structural stability. 

5. What is involved in such an assessment, and what risks does one address? 

MSHA regulations require weekly visual safety inspections of coal slurry impoundments by a 

qualified dam safety expert. 

6. Why are weekly inspections required? 

7. Should weekly inspections be required for coal ash impoundments? 

The 1972 Buffalo Creek disaster killed 125 people and injured 1100 more. The people living below 

the impoundment were not warned of the risk, even as officials with the mining company using the 

impoundment documented rising water levels and cracks in the embankment. Alerted by a concerned 

resident, the Deputy Sheriff went to inspect the impoundment, but was assured by mining company 

officials that the dam was safe. That sheriff later testified that if the mining official "had known that 

dam was going to break, and informed us of that, then, hell, I don't think anybody would have got 

drowned. Chances are we could have got everybody out, me and the other patrol car." 

8. Should owners and operators of coal ash impoundments be required to monitor their 

impoundments so that potentially hazardous conditions can be identified in a timely manner? 
249 


82182.199

9. Should owners and operators of coal ash impoundments be required to, immediately upon 

discovering a potentially hazardous condition, notifY state and local first responders? 

10. Should owners and operators of coal ash impoundments be required to, immediately upon 

discovering a potentially hazardous condition, notifY, prepare to evacuate, and evacuate if 

necessary local residents, personnel, and any other people who be affected by the hazardous 

condition? 

11. Should owners and operators of coal ash impoundments be required to, immediately upon 

discovering a potentially hazardous condition, take action to eliminate the potentially hazardous 

condition? 

2 
250 


82182.200

Subcommittee on Environment & the Economy 

Response Regarding Coal Ash Dam Safety from Jack Spadaro 

June 23, 2013 

The Honorable John Shimkus, Chairman 

Subcommittee on Environment & the Economy 

Dear Chairman Shimkus: 

The following are my responses to questions from the Honorable Henry A. 

Waxman regarding my testimony before the subcommittee on April 11, 2013: 

1. The threats to safety and the environment posed by coal ash 

impoundments that are similar to those posed by coal slurry 

impoundments are the threats of massive failure of unregulated dams 

that contain by-products that are full of heavy metals and are dangerous 

to human beings. The coal slurry dam failure at Buffalo Creek in Logan 

County, WV killed 125 people and left 4,000 people homeless. Manyof 

the existing coal ash dams in the United States have not received the 

essential scrutiny during construction and operation. Failure of the 

dams will assuredly cause loss of life and property. The MSHA and OSM 

criteria that have been used in the coal fields to regulate the 

construction of coal slurry impoundments could be used as the criteria 

for construction and maintenance of coal ash dams. These criteria have 

been by and large very effective since 1978. 

2. If the coal ash dams were regulated in a manner similar to the coal 

slurry impoundments, with adequate geotechnical and hydrological 

standards, the coal ash dams would be made much safer. 

3. If the MSHA and OSM standards had been utilized at the TVA Kingston, 

Tennessee Fossil Plant the dam failure would not have occurred. 

Compaction requirements, drainage control requirements, and 

instrumentation and monitoring would have prevented the TVA dam 

failure. 
251 


82182.201

4. The EPA assessment regarding the stability of large coal ash 

impoundments established that most of the dams are not properly 

constructed and pose a hazard to the public. Failure of the coal ash 

dams will result in loss of life. Geotechnical evaluations involving drilling 

into the dams to sample and determine the strength of the materials 

will be required to evaluate long term stability. Instrumentation such as 

piezometers to determine internal water levels will also be necessary. 

5. The assessments should be conducted by qualified geotechnical and 

hydraulic experts such as those professionals at the U.S. Army Corps of 

Engineers or the Bureau of Reclamation who have years of experience 

evaluating the structural integrity of earthen dams. There are also 

numerous geotechnical engineering firms in the United States who are 

capable of conducting the required evaluations. Each dam should be 

evaluated by conducting drilling and soil sampling, testing the materials, 

determining the phreatic levels within the dams, and then performing 

slope stability analysis to determine the long term conditions for the 

dams. Following the Buffalo Creek disaster, hundreds of such analyses 

were performed on coal waste dams throughout the United States. The 

owners were required to make the necessary modifications to the 

structures to protect downstream residents. A hydrological analysis was 

also necessary to route storm waters through the reservoirs. 

Modifications were made to increase the size of emergency spillways to 

accommodate the appropriate design storms. Most structures in the 

coalfields were modified to accommodate the probable maximum 

storm. These kinds of evaluations should be performed on the existing 

and proposed coal ash impoundments. Weekly evaluations of dams and 

annual certifications by qualified geotechnical engineers is a must but 

cannot be a substituted for regular mandatory safety standards 

enforced by a government entity with authority to require the necessary 

standards. 

6. Weekly inspections are required because even well constructed dams 

can develop seepage and stability problems that if left uncontrolled can 

cause dam failures. Weekly inspections are essential for long term 

maintenance of earthen dams such as coal ash dams. Coal ash is 

particularly susceptible to failure by "piping" because it is a fine grained 
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material that will liquify easily and fail rapidly as was evident at the TVA 

Kingston Tennessee coal ash dam. 

7. MSHA requirements ensure that downstream residents should be 

evacuated if a serious stability problem develops at a coal waste dam. 

Coal ash dam owners should be required to monitor the dams and 

develop a warning system for residents. 

8. State and local officials should be notified by owners of coal ash dams if 

stability problems are discovered. Formal and effective notification and 

evacuation plans are essential for protection of the public, but the most 

effective protection will be provided by using sound engineering 

practices in constructing and maintaining coal ash dams. Additionally, 

disaster preparedness exercises should be conducted through local, 

state, and federal entities to further ensure the safety of the public. 

These exercises are conducted regularly across the nation to prepare 

emergency responders in a simulated catastrophe event. The owners 

must be held accountable for ensuring the safety of the coal ash dams 

and the public. A strong regulatory process for permitting and operating 

dams is absolutely necessary. 

9. The regulatory authority should be able to require the owners and 

operators to take the necessary actions to modify and stabilize the dams 

should problems develop. Both MSHA and OSM can order the 

modifications of a dam to ensure long term stability and the protection 

of the public. 

Jack Spadaro 

June 23, 2013