UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

 OFFICE OF RESOURCE CONSERVATION AND RECOVERY

OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE

 PUBLIC HEARING ON EPA'S PROPOSED RULE ON

 Hazardous and Solid Waste Management System;

Identification and Listing of Special Wastes;

 Disposal of Coal Combustion Residuals from

 Electric Utilities

 DOCKET ID NO. EPA-HQ-RCRA-2009-0640

 Dallas, Texas

 Wednesday, September 8, 2010
 2

 1 PARTICIPANTS:

 2 EPA Hearing Panel:

 3 Morning Session:

 4 ROBERT DELLINGER, Chair

 Director of Materials Recovery and Waste

 5 Management

 Office of Resource Conservation and Recovery

 6

 LAURA CELESTE

 7

 GOLAM MUSTAFA

 8

 CRAIG DUFFICY

 9

 Afternoon Session:

 10

 FRANK BEHAN, Chair

 11 Acting Chief of the Energy Recovery and Waste

 Disposal Branch

 12 Office of Resource Conservation and Recovery

 13 STEVE SOUDERS

 14 JIM KOHLER

 15 ELAINE EBY

 16 Evening Session:

 17 ROBERT DELLINGER, Chair

 Director of Materials Recovery and Waste

 18 Management

 Office of Resource Conservation and Recovery

 19

 LAURA CELESTE

 20

 CRAIG DUFFICY

 21

 STEVE SOUDERS

 22

 * * * * *
 3

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

 2 (10:02 a.m.)

 3 MR. DELLINGER: Good morning. Thank you

 4 for attending today's public hearing on the

 5 Environmental Protection Agency's proposed rule

 6 regarding the regulation of coal ashes that are

 7 disposed of in landfills and surface impoundments.

 8 Before we begin, I would like to thank you for

 9 taking time out from your busy schedules to

 10 address our proposed rule, and we look forward to

 11 receiving your comments.

 12 This is the third of seven scheduled

 13 public hearings that we will be conducting. We

 14 had two very successful hearings last week in

 15 Washington, D.C., and Denver. The remaining

 16 hearings are scheduled in Charlotte, Chicago,

 17 Pittsburgh, and Louisville.

 18 My name is Bob Dellinger. I'm Director

 19 of the Materials Recovery and Waste Management

 20 Division of the EPS's Office of Resource

 21 Conservation and Recovery. I will be chairing

 22 this session of today's public hearing. With me
 4

 1 on the panel are Laurel Celeste from our Office of

 2 General Counsel, Golam Mustafa from our Dallas

 3 regional office, and Craig Dufficy who works with

 4 me.

 5 Before we begin the hearing, I would

 6 like to provide you a brief description of the

 7 proposed rule, as well as the logistics on how we

 8 plan to run today's public hearing.

 9 Coal combustion residuals, or CCRs, are

 10 residues from the combustion of coal at electric

 11 utilities, and include fly ash, bottom ash, boiler

 12 slag, and flue gas desulfurization materials.

 13 Coal combustion residuals contain problematic

 14 contaminants such as mercury, cadmium, selenium,

 15 and arsenic.

 16 In 2008, 136 million tons of coal

 17 combustion residuals were generated by electric

 18 utilities and independent power producers. Of

 19 that total, approximately 46 million tons were

 20 landfilled, 30 million tons were disposed in

 21 surface impoundments, 50 million tons were

 22 beneficially used, and 11 million tons were used
 5

 1 in minefill operations. EPA estimates that there

 2 are approximately 300 landfills and more than 600

 3 surface impoundments where coal combustion

 4 residuals are disposed.

 5 We have proposed to regulate these coal

 6 combustion residuals to ensure their safe

 7 management when they are disposed in landfills and

 8 surface impoundments. Without proper protections,

 9 the contaminants in these residuals can leach into

 10 groundwater and migrate to drinking water sources,

 11 posing public health concerns.

 12 In addition, the structural failure of a

 13 surface impoundment at the Tennessee Valley

 14 Authority's plant in Kingston, Tennessee, in

 15 December of 2008 released more than 5 million

 16 cubic yards of coal ash over approximately 300

 17 acres of land and contaminated portions of the

 18 Emory and Clinch Rivers.

 19 With this proposal, EPA has opened a

 20 national dialogue by calling for public comment on

 21 two different regulatory approaches available

 22 under the Resource Conservation and Recovery Act
 6

 1 for addressing the risks from the disposal of coal

 2 combustion residuals. One option presented in

 3 that proposed rule draws from the authorities

 4 available under the Subtitle C of RCRA. This

 5 would create a comprehensive program of federally

 6 enforceable requirements for waste management and

 7 disposal.

 8 The other option is based on the

 9 authorities under Subtitle D of RCRA, which gives

 10 the EPA authority to set minimum federal criteria

 11 for waste management facilities that would be

 12 enforced through citizens. Under this scenario,

 13 states would be considered the same as citizens.

 14 EPA decided to co-propose these two rule

 15 options to encourage a robust dialogue on how to

 16 address the human health concerns and structural

 17 integrity issues associated with disposal of coal

 18 combustion residuals in landfills and surface

 19 impoundments.

 20 EPA wants to ensure that our ultimate

 21 decision is based on the best available data, and

 22 is made with the substantial input from all
 7

 1 stakeholders. Therefore, we ask that you provide

 2 us your comments not only at today's hearing, but

 3 any other comments and supporting information that

 4 you want to provide.

 5 I would also like to say a few words

 6 about beneficial use of coal combustion residuals.

 7 The proposed rule maintains the Bevill exemption

 8 for coal combustion residuals that are

 9 beneficially used and, therefore, would not alter

 10 the regulatory status of these residuals when used

 11 in this manner. EPA continues to strongly support

 12 the safe and protective beneficial use of CCRs.

 13 However, the proposal also indicates

 14 that concerns have been raised with some uses of

 15 coal combustion residuals, particularly when used

 16 in an unencapsulated form. Therefore, we request

 17 comments, information, and data on specific

 18 aspects of beneficial use, particularly those

 19 activities that deal with unencapsulated

 20 applications.

 21 We also make clear in the proposal that

 22 coal combustion residuals that are placed in sand
 8

 1 and gravel pits, quarries, and other large-scale

 2 fill operations are not examples of beneficial

 3 use. EPA views this placement as akin to disposal

 4 and would regulate these sites as disposal sites

 5 under either of these regulatory options.

 6 Now I'll cover the logistics for the

 7 comment portion of today's public hearing.

 8 Today's public hearing will work as follows.

 9 Speakers, if you were preregistered, you were

 10 given a 15-minute time slot when you are scheduled

 11 to give your three minutes of testimony. To

 12 guarantee that slot, we have asked that you sign

 13 in 10 minutes before your 15-minute slot at the

 14 registration desk.

 15 All speakers, those that are

 16 preregistered and walk-ins, were given a number

 17 when you signed in today and this is the order in

 18 which you will speak. I will call speakers to the

 19 front row over here near the podium, by number,

 20 four or five at a time, depending on where we are

 21 in the program.

 22 When your number is called, please move
 9

 1 to the microphone and state your name and your

 2 affiliation. We may ask you to spell your name

 3 for the court reporter who is transcribing your

 4 comments for the official record.

 5 Because there are many people who have

 6 signed up to provide testimony today, and to be

 7 fair to everybody, testimony is limited to three

 8 minutes. We will be using an electronic

 9 timekeeping system and will also hold up cards to

 10 let you know when your time is getting low.

 11 When we hold up the first card, this

 12 means that you will have two minutes left. When

 13 we hold up the second card, that means you have

 14 one minute left. When the third card is held up,

 15 you have 30 seconds left. When the red card is

 16 held up, you are out of time and should not

 17 continue with your remarks. Remember, you can

 18 provide any written material to our court

 19 reporter, and the material will be entered into

 20 the record.

 21 We will not be answering questions on

 22 the proposal. However, from time to time, any of
 10

 1 us on the hearing panel may ask questions to

 2 clarify your testimony.

 3 As I just mentioned, if you have brought

 4 a written copy of the comments that you're giving

 5 today, please leave a copy in the box by our court

 6 reporter, who is on my left, your right. If you

 7 are submitting written comments today, please put

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

 9 have additional comments after today, please

 10 follow the instructions in the yellow handout and

 11 submit comments to the EPA by November 19, 2010.

 12 Our goal is to ensure that everyone who

 13 has come today to present testimony is given an

 14 opportunity to provide comment. To the extent

 15 allowable by time constraints, we will do our best

 16 to accommodate speakers that have not

 17 preregistered. Today's hearing is scheduled to

 18 close at 9:00 p.m., but we will stay later if

 19 necessary.

 20 If, however, time does not allow you to

 21 present your comments orally, we have prepared a

 22 table in the lobby where you can provide a written
 11

 1 statement in lieu of oral testimony. These

 2 written statements will be collected and entered

 3 into the docket for the proposed rule and will be

 4 considered the same as if you presented them

 5 orally at today's hearing.

 6 If you would like to testify but have

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

 8 registration table. We are likely to take

 9 occasional breaks, but we're prepared to eliminate

 10 or shorten the breaks in order to allow as many

 11 people as possible to provide their oral testimony

 12 today.

 13 Finally, if you have a cell phone, we'd

 14 appreciate it if you would turn it off or turn it

 15 to vibrate. If you need to use your phone at any

 16 time during the hearing, please move to the lobby.

 17 We ask for your patience as we proceed. We may

 18 need to make some minor adjustments as the day

 19 progresses.

 20 Thanks again for participating today.

 21 Let's get started. I'm calling up Numbers 1, 75,

 22 3, and 4. Number 1.
 12

 1 SPEAKER: Thank you. Good morning. My

 2 name is Mike Nasi, and I represent the Texas Coal

 3 Combustion Products Coalition, which is comprised

 4 of owners and operators of coal-fired power plants

 5 across Texas that have a long history of

 6 responsibly managing CCRs.

 7 Although we are confident that the

 8 existing industry practice and environmental

 9 regulatory framework is adequate without the need

 10 for federal intervention, we would support the

 11 EPA's efforts to establish national criterion on

 12 two conditions.

 13 First, that the criteria be developed

 14 with Subtitle D, not Subtitle C; and second, that

 15 that Subtitle D criteria be implemented by states,

 16 and states be afforded the leading role. We would

 17 suggest the states be afforded the role that they

 18 played in municipal solid waste regulatory

 19 limitations, which has been successful.

 20 Rather than engage in science by sound

 21 bite with the limited time we have, we will defer

 22 to our written comments to set the record straight
 13

 1 to refute many of the unsubstantiated claims and

 2 alleged damage cases in Texas.

 3 I'll spend the time that I have today

 4 imploring EPA to remember and look beyond the PR

 5 campaign, the negative PR campaign of the day, and

 6 remember that coal ash recycling is, in fact, one

 7 of the great American environmental success

 8 stories, a success story and gains that all could

 9 be lost if the wrong approach is taken with this

 10 rule making.

 11 Back in the early 1990s, Texas had the

 12 regulatory foresight to develop a framework that

 13 responsibly managed the disposal of CCBs while at

 14 the same time expanding the markets for CCP

 15 recycling. That leadership led to an increased

 16 recycle rate of 15 percent in 1992, all the way to

 17 70 percent in 2005, successes that were recognized

 18 by EPA when it commissioned a study in 2005 to

 19 identify and describe Texas as a model state.

 20 In that report, I quote, this report

 21 said: "Other states with less successful CCP

 22 utilization can learn from what Texas has done
 14

 1 right and implement similar activities in their

 2 own states."

 3 That report identified as a direct

 4 threat to continued successful recycling the

 5 stigma that would result from Subtitle C

 6 regulation. There are many that would suggest

 7 that stigma is not real. We would submit to you

 8 that that 2005 report establishes that it's real.

 9 The federal agencies that have commented to EPA

 10 already on the rule establishes that it's real.

 11 You will hear from many today who spent the large

 12 part of their adult lives successfully recycling

 13 CCPs, who believe and are convinced that the

 14 stigma is real.

 15 I'll go ahead and wrap up. I would just

 16 ask that we proceed with the Subtitle D as opposed

 17 to a Subtitle C approach. We will fully document

 18 all of our positions in writing. Thank you for

 19 the time to address you here today.

 20 MR. DELLINGER: Number 3.

 21 SPEAKER: My name is John Ward. I'm

 22 chairman of Citizens for Recycling First, an
 15

 1 organization of more than 1,500 individuals who

 2 believe that the best way to solve coal ash

 3 disposal problems is to quit throwing coal ash

 4 away. Thank you for this opportunity to write

 5 comments to the agency and for the opportunity to

 6 interact with others who are concerned about

 7 regulations for coal ash disposal.

 8 At the first two public hearings in

 9 Washington, D.C., and Denver, I've had numerous

 10 opportunities to converse with people who belong

 11 to organizations that are committed to reducing

 12 greenhouse gas emission linked to climate change.

 13 Most of these people had no idea that coal ash is

 14 used to replace portland cement in the production

 15 of concrete, an activity that reduces greenhouse

 16 gas emissions from cement productions by more than

 17 12 million tons every year.

 18 It's not surprising that people don't

 19 know this. The major environmental activist

 20 organizations that favor a hazardous waste

 21 designation for coal ash never mention that ash

 22 can be recycled safely with environmental
 16

 1 benefits. The Environmental Protection Agency has

 2 further contributed to this lack of understanding

 3 by removing its Coal Combustion Products

 4 Partnership Web site from the Internet just when

 5 the need for information about coal ash recycling

 6 is at its greatest.

 7 Many people in this room would like to

 8 see the use of coal disappear altogether. However

 9 worthy that goal is, it won't happen overnight.

 10 Nearly half of America's electricity is generated

 11 by burning coal, and Americans keep using more

 12 electricity every year. Like it or not, coal will

 13 continue to be burned in significant quantities

 14 for many years to come. So the question remains:

 15 What should we do with the ash that is left over?

 16 Recycling coal ash keeps it out of

 17 landfills and ponds where it can cause the kind of

 18 problems we will hear much about during today's

 19 hearings. Recycling it in applications such as

 20 concrete production produce additional benefits

 21 like greenhouse gas emissions reductions that are

 22 important to everyone in this room.
 17

 1 There are two regulatory options before

 2 us for comment today, the Subtitle C hazardous and

 3 Subtitle D non-hazardous. Under both proposals,

 4 new landfill engineering standards are essentially

 5 the same. Landfills won't be any stronger or

 6 better under Subtitle C, but coal ash recyclers

 7 will be saddled with a hazardous waste sigma that

 8 will make continued recycling of this resource

 9 difficult or impossible.

 10 For those who deny the existence of

 11 stigma, I would ask just two questions. First, if

 12 the EPA is right and a hazardous waste designation

 13 would motivate people to recycle more, then why

 14 are the people who make their livings as recyclers

 15 unanimously opposed to it? Wouldn't they be in

 16 favor of something that would help them make more

 17 money? Perhaps it is because the people who

 18 recycle ash every day are well aware of the

 19 response you and your neighbors would give to the

 20 second question: Would you want something that is

 21 classified as hazardous waste in your home,

 22 school, or workplace?
 18

 1 The EPA should enact tougher coal ash

 2 disposal regulations, but it should do so without

 3 unnecessarily classifying coal ash as a hazardous

 4 waste and risking the destruction of a recycling

 5 effort that helps accomplish everyone's goal of a

 6 cleaner environment. Thank you.

 7 MR. DELLINGER: Number 4.

 8 (Discussion off the record)

 9 MR. DELLINGER: Excuse me. Do you have

 10 the first half of your statement in writing?

 11 SPEAKER: This one?

 12 MR. DELLINGER: Yes.

 13 SPEAKER: Yes.

 14 MR. DELLINGER: Okay. So we'll be able

 15 to capture that.

 16 SPEAKER: Yes.

 17 MR. DELLINGER: You should start over,

 18 then. We can't hear you.

 19 SPEAKER: You want me to start over?

 20 MR. DELLINGER: Yes.

 21 SPEAKER: For more than six years I've

 22 been directly impacted by the dumping of the fly
 19

 1 ash from the AES Shady Point coal-burning power

 2 plant. The trucks drive directly in front of my

 3 house and they dump it in the Making Money Having

 4 Fun fly ash pit located about a mile from my home.

 5 During the past two years, I've become very

 6 knowledgeable about the state agencies that

 7 regulate the fly ash pit.

 8 My message to you today is that the

 9 state regulatory system in Oklahoma has failed.

 10 The responsibility for regulating the Making Money

 11 Having Fun fly ash pit is divided between three

 12 agencies in Oklahoma: The Corporation Commission,

 13 Department of Environmental Quality, and the

 14 Department of Mines.

 15 I'm sure everybody here knows what a

 16 shell game is. It's a game played with three

 17 shells and a pea, and it's referred to as a short

 18 con because it's really easy to pull off. The

 19 agencies have used the division of jurisdiction to

 20 play a shell game with us.

 21 We know that Making Money Having Fun is

 22 breaking the law, but we have to find out which
 20

 1 agency is responsible for which laws. If we want

 2 to get the laws enforced, we have to find out

 3 which agency is responsible for enforcement.

 4 Like a con man, the agencies explain

 5 that finding a violation of a law is very easy.

 6 They say the law is clear. They say they are

 7 experts at enforcing the law and they are here to

 8 protect us. At first, we believe them and play

 9 their game. We would call in a violation and they

 10 would say, sorry, no violation here. We have

 11 played this game for a long time, maybe due to the

 12 investment of time, money, commitment, and

 13 sacrifice.

 14 I'm pleased to report we've figured out

 15 the game. We keep finding the pea. We have

 16 exposed seven years of violations of the Clean Air

 17 Act; we've exposed Clean Water Act violations; and

 18 we're exposing the fact that this is not a mine

 19 reclamation project, but instead a surface

 20 impoundment that towers over the surrounding land.

 21 We keep finding the pea in the shell

 22 game, but like a con man who has your money, the
 21

 1 Corporation Commission, the Department of Mines,

 2 and the Department of Environmental Quality keep

 3 wanting to play the game again and again. Their

 4 goal seems to be to keep dumping fly ash in

 5 Bokoshe, Oklahoma, and we are sick of playing the

 6 shell game.

 7 Our state agencies, as well as our state

 8 and U.S. senators and representatives have

 9 determined that tiny Bokoshe, in rural Oklahoma,

 10 is politically inconsequential. As long as the

 11 enforcement of fly ash regulations are subject to

 12 politics, this environmental injustice will

 13 continue.

 14 We need to replace the vague,

 15 subjective, and virtually unenforceable state

 16 regulations with a strict, well-established,

 17 enforceable regulation. In order to end this

 18 game, we ask the EPA to adopt Subtitle C

 19 regulations and impose strict and enforceable

 20 regulations. Thank you.

 21 MR. DELLINGER: Thank you. Number 75.

 22 While he's moving to the microphone, could we have
 22

 1 Numbers 5, 6, 7, 98, and 200 move up.

 2 SPEAKER: Good morning. My name is Earl

 3 Lott. I'm the director of the Waste Permits

 4 Division of the Texas Commission on Environmental

 5 Quality, and I'm providing comments today on

 6 behalf of our executive director in regards to

 7 EPA's proposed coal combustion by-products rule.

 8 Texas has one of the highest number of

 9 coal facilities in the United States and

 10 consequently the largest producer of coal

 11 combustion residuals in the nation. We believe

 12 that Texas has adequate and effective regulations

 13 to safely manage coal combustion residuals. Texas

 14 has promulgated effective legislation and has been

 15 at the forefront of recycling initiatives for the

 16 use of coal combustion by-products in the

 17 industry. Coal combustion recycling rates in

 18 Texas are as high as 60 to 70 percent.

 19 EPA has acknowledged that Texas has been

 20 a model state on this issue, and that was

 21 recognized in the early '90s. Recycling rates

 22 have dramatically improved in Texas, from around
 23

 1 20 to 25 percent in the early '90s to the rate of

 2 60 to 70 percent today. We've done this --

 3 achieved this through progressive legislation, by

 4 diligent work with -- cooperating with state

 5 agencies like the Texas Department of

 6 Transportation, as well as working with industry

 7 groups and utilities on building these markets.

 8 Also, Texas coal-fired facilities generally

 9 produce high-quality coal combustion residuals

 10 that are appropriate for a number of beneficial

 11 use applications in highway construction building

 12 products and infrastructure building materials.

 13 In most areas of the state, Texas has developed a

 14 fly-ash-based concrete market producing

 15 high-quality products.

 16 We believe that the EPA's proposed

 17 options to regulate coal combustion residuals

 18 under the Subtitle C of RCRA threatens the great

 19 strides that Texas has made in dramatically

 20 improving the coal combustion recycling rates in

 21 Texas. The TCEQ has effective regulations in

 22 place to safely manage coal combustion residuals.
 24

 1 Even though permits are currently not required, we

 2 do require registrations and monitoring of the

 3 material, which also provides safeguards in

 4 preventing the impacts to health and the

 5 environment. Texas regulations require the

 6 characterization, classification, and submittal of

 7 that notification of the waste prior to disposal.

 8 In summary, TCEQ requests the EPA

 9 carefully consider the impact of coal combustion

 10 residual regulations on beneficial use, and the

 11 TCEQ would like to reiterate the EPA should

 12 determine -- if the EPA should determine that

 13 federal regulations are necessary, we prefer the

 14 Subtitle D option rather than the Subtitle C. A

 15 regulation under C could potentially cause

 16 negative impact on the current business in these

 17 markets. Thank your for your time.

 18 MR. DELLINGER: Thank you. Number 5.

 19 SPEAKER: Good morning. I am Tim

 20 Tanksley of Bokoshe, Oklahoma. One of the biggest

 21 problems with state regulations of fly ash in

 22 Bokoshe, Oklahoma, is that they call the mounds of
 25

 1 fly ash mine reclamation. I personally own a

 2 tract of land that has been stripped and

 3 reclaimed. It takes an experienced eye to see

 4 that the land was ever disturbed.

 5 Mine reclamation is certainly not what

 6 is happening at Making Money Having Fun's site.

 7 They have created a permanent mound of fly ash

 8 rising 55 feet above the surrounding land. This

 9 mound covers more than 20 acres. On this mountain

 10 of fly ash, Making Money Having Fun has been

 11 permitted to dump oil and gas wastewater.

 12 After we showed the Oklahoma Department

 13 of Environmental Quality that this water was

 14 running off the side, the ODEQ called the EPA.

 15 Last December, the EPA issued a cease and desist

 16 order because of illegal discharges, violating the

 17 Clean Water Act.

 18 We later learned that Senator James

 19 Inhofe's staff contacted EPA to find out when the

 20 MMHF could resume operation of its so-called mine

 21 reclamation.

 22 I became concerned that Senator Inhofe
 26

 1 had been misinformed. I went to Washington, D.C.,

 2 and met with Senator Inhofe's staff and explained

 3 that MMHF was creating a toxic mix of fly ash and

 4 oil and gas wastewater to build a mountain a fly

 5 ash. Senator Inhofe had his staff investigate the

 6 matter. He then sent me a letter stating the fly

 7 ash mound is temporary and will disappear.

 8 I understand that Senator Inhofe once

 9 said that global warming is the greatest hoax ever

 10 pulled on the American people. The biggest hoax

 11 pulled on the people of Bokoshe, Oklahoma, is

 12 telling them that this mountain of fly ash is

 13 temporary and will disappear.

 14 Fly ash and oil and gas wastewater

 15 create a toxic mixture, but there is another toxic

 16 mixture in Bokoshe and everywhere else that fly

 17 ash is dumped. That is the mixture of politics

 18 and law enforcement. We need to face the fact

 19 that pollution is a problem. As long as we let

 20 politics influence law enforcement, the

 21 environmental injustice in Bokoshe will continue.

 22 The only way to eliminate this
 27

 1 environmental injustice for the people of Bokoshe,

 2 Oklahoma, is for the EPA to regulate fly ash under

 3 Subtitle C. Thank you.

 4 MR. DELLINGER: Thank you. Number 6.

 5 SPEAKER: Good morning. I'm Sharon

 6 Tanksley from Bokoshe, Oklahoma.

 7 In 2000, people from Bokoshe protested

 8 the issuance of a permit to mine shale and clay

 9 and to dispose of fly ash in a proposed pit. One

 10 of our concerns was the potential of dust from

 11 this pit.

 12 To address these concerns, Making Money

 13 Having Fun sent a letter stating -- and I quote --

 14 "Clean air laws, like clean water laws, of our

 15 land are very specific and enforceable, especially

 16 for mining operations in Oklahoma. Since the

 17 airborne dust is fly ash, they use a skimming

 18 operation. MMHS LLC will use for its proposed

 19 operation new water slurry techniques. This new

 20 technology has minimized the escape of dump fly

 21 ash into the air and prevents most of the nuisance

 22 air pollution from drifting on adjacent property
 28

 1 owners." End quote.

 2 This simply isn't true. For seven years

 3 it looked like this, every time they dumped. When

 4 people from Bokoshe complained of fly ash covering

 5 their town, the Oklahoma Department of Mines and

 6 the Oklahoma Department of Environmental Quality

 7 said that Making Money Having Fun was doing

 8 everything required by law.

 9 This was not true. These state agencies

 10 ignored Bokoshe's complaints until April 15, 2009.

 11 On that day, we went to a meeting of the Air

 12 Quality Advisory Council, which is part of the

 13 Oklahoma Department of Environmental Quality.

 14 The staff questioned why we were there

 15 and they explained that the council did not deal

 16 with enforcement issues. The staff debated among

 17 themselves whether or not they would even let us

 18 speak. When it was mentioned that a reporter from

 19 the Tulsa World was covering the meeting, it was

 20 decided that the people from Bokoshe should be

 21 allowed to speak, and the Tulsa World reported on

 22 Bokoshe's presentation.
 29

 1 The exposure of the information from

 2 Bokoshe was so compelling that the ODEQ

 3 immediately sent a team of staff members to

 4 Bokoshe. On May 1st, 15 days after the meeting,

 5 the team reported on their investigation. They

 6 found that MMHF had been committing five separate

 7 violations of the Clean Air Act for seven years.

 8 It is clear that ODEQ acted only because

 9 the public exposure created enough political

 10 pressure to force ODEQ to take action. It may be

 11 more accurate to say that for that two-week

 12 period, from April 15th to May 1st, 2009, the ODEQ

 13 staff was permitted to do their job. But that

 14 ended quickly.

 15 For the next nine months, MMHF lobbied

 16 the ODEQ behind closed doors. Although the staff

 17 found seven years of Clean Air Act violations,

 18 ODEQ entered a consent order with no fines, no

 19 penalties, and no findings of violations.

 20 ODEQ made MMHF agree to get the permit

 21 for its fly ash pit. ODEQ refuses to enforce laws

 22 until public exposure forces it to act, but once
 30

 1 it is away from the public eye, law enforcement

 2 stops.

 3 Today, I am asking you to regulate fly

 4 ash under Subtitle C and to impose a strict and

 5 enforceable rule on the handling of fly ash.

 6 Thank you.

 7 MR. DELLINGER: Number 7.

 8 SPEAKER: I am Suella Hudson from

 9 Bokoshe, Oklahoma, and I thank you for this

 10 opportunity this morning.

 11 In 1992, the AES coal-burning plant was

 12 opened, and in 1994 the Smith Daniel pit, one mile

 13 southwest of my house, was opened. From this pit

 14 the wind -- the wind blew from the south; it blew

 15 across the yard and into my house.

 16 In 2002 a company called Making Money

 17 Having Fun opened another strip pit a mile

 18 southwest of my home. Since then, we've been

 19 plagued with fly ash blowing across the yard into

 20 the house, and since I live on the highway used by

 21 the fly ash truck, I also get all the fly ash

 22 blowing off of these trucks. There are eight of
 31

 1 them running ten loads each day back and forth

 2 from the AES plant to the fly ash dump and back.

 3 At first, we were told that there was

 4 nothing harmful in fly ash; it was just limestone.

 5 And we believed them. Since that time, we've had

 6 to accept this as our way of life. We have

 7 tolerated the fly ash blowing into our houses and

 8 in the air we breathe.

 9 We put up with this until the AES plant

 10 filed a petition to build a second plant, larger

 11 than the first one, right next door to the one

 12 they had. We then realized that we could not

 13 tolerate that much more fly ash in our area. So

 14 we went to this protest meeting, and when we got

 15 through listening to the talk down there, we came

 16 home and we realized that we did not know any more

 17 about fly ash than we did before we went to the

 18 meeting.

 19 My youngest daughter, a graphic artist

 20 and a whiz on the Internet, and I got together and

 21 we researched fly ash and educated ourselves, and

 22 from that the Bokoshe Environmental Group was
 32

 1 born, and it's all because -- because it's in the

 2 air we breathe.

 3 My daughter, Charlie, lived next door to

 4 me from 1994 to 2004, when she suddenly became

 5 sick. I took her to the emergency room. We

 6 thought it was just a bronchial infection. She

 7 was diagnosed with third-stage cancer, and she

 8 died 17 days later.

 9 We didn't get concerned about the fly

 10 ash at that point. We didn't even connect the

 11 dots. But then we learned that of the 20 families

 12 living closest to the fly ash pit, 14 of them have

 13 cancer in their family and some of them have died.

 14 We recently met a gentleman and sat with him; his

 15 wife had died. And he had compiled a list that's

 16 three pages long, double-spaced, double-column, of

 17 people who have died with cancer in our area.

 18 And we're asking today that you please

 19 adopt Subtitle C that classifies fly ash as

 20 hazardous. Thank you.

 21 MR. DELLINGER: Number 98.

 22 SPEAKER: Good morning. I'm Jim Roewer,
 33

 1 executive director of the Utility Solid Waste

 2 Activities Group, or USWAG, an association of over

 3 100 electric utilities and trade associations

 4 that's been working with the EPA for nearly three

 5 decades regarding the agency's implementation of

 6 the Bevill Amendment for coal combustion

 7 residuals, or CCRs. I appreciate the opportunity

 8 to speak today to debunk some myths about CCRs.

 9 I'll leave it to others directly engaged

 10 in ash utilization to shatter the myth that

 11 Subtitle C hazardous waste regulation will

 12 actually increase beneficial use.

 13 The first myth I want to dispel is that

 14 industry wants to preserve the status quo. This

 15 is not correct. In fact, we support the

 16 development of federally enforceable regulations

 17 under RCRA's Subtitle D non-hazardous waste

 18 program.

 19 The second myth is that EPA's Subtitle D

 20 option is only guidance. This is not correct.

 21 Under the Subtitle D option, EPA would issue

 22 federal regulations specifically designed for CCR
 34

 1 disposal units. These regulations would be

 2 directly enforceable by the states and the public,

 3 and violators would be subject to significant

 4 civil penalties. These are real regulations with

 5 teeth, and it is misleading to suggest otherwise.

 6 Some of the myths floating around are

 7 just plain silly, especially that exposure to coal

 8 ash is riskier than smoking cigarettes. This

 9 claim is based on bad science and is misleading

 10 for the following reasons: First, the coal ash

 11 risks cited in this analogy are greatly

 12 exaggerated. In fact, there is a 90 percent

 13 probability that the risk is lower.

 14 If we use a more realistic coal ash risk

 15 level, one that has an equal chance of being

 16 higher or lower -- a middle estimate, if you will

 17 -- the cancer risk from coal ash exposure is

 18 actually lower than the cancer risk from drinking

 19 water meeting the current federal drinking water

 20 standard for arsenic, and lower than the

 21 comparison's incorrect and greatly underestimated

 22 lifetime cancer smoking risk. Second, the analogy
 35

 1 is comparing apples and oranges. It is

 2 inappropriate to compare the prevalence of cancer

 3 from smoking that reflect the actual number of

 4 cancers caused by smoking with hypothetical

 5 lifetime cancer risks from coal ash that are based

 6 on greatly exaggerated conservative assumptions.

 7 The comparison also greatly

 8 underestimates the actual risk from smoking in an

 9 attempt to make the risks from coal ash appear so

 10 much greater. In fact, the actual lifetime risk

 11 of lung cancer from smoking is greater than 10,000

 12 per 100,000 smokers, more than 10 percent. This

 13 risk is more than 1,000 times greater than the

 14 hypothetical risk from coal ash.

 15 We have to base any regulatory decision

 16 on sound science and not trumped-up or inaccurate

 17 charges. The truth is that the actual risks from

 18 CCRs can be properly addressed by federal

 19 non-hazardous Subtitle D regulations.

 20 There is simply no reason for the EPA to

 21 pursue the Subtitle C approach when it can develop

 22 federally enforceable rules under the less
 36

 1 controversial, yet equally protective, Subtitle D

 2 non-hazardous waste program. Thank you.

 3 MR. DELLINGER: Thank you. Number 200.

 4 SPEAKER: Good morning. My name is Tom

 5 Shaw. I am with Harsco Corporation, a global

 6 industrial services company with over 22,000

 7 employees. We have multiple operations in Texas,

 8 two of which are dedicated to processing coal slag

 9 as an abrasive blasting grit or roofing granule.

 10 Since the 1930s we have been a green

 11 recycler of boiler slag. Boiler slag is formed

 12 when extremely hot molten coal ash is quenched

 13 with cold water, and the coal ash immediately

 14 becomes a vitrified, amorphous solid, glassy

 15 matrix known as boiler slag.

 16 Vitrification renders the material

 17 inert. In a chemical process using heat, it

 18 transforms the mixture into a soluble liquid which

 19 solidifies when cooling. Because slag is

 20 vitrified, it is very durable and an

 21 environmentally stable material that permanently

 22 immobilizes its chemical constituents in a glassy
 37

 1 amorphous which remains stable, even when broken

 2 in small fragments during abrasive blasting, as

 3 evidenced by x-ray diffraction and TCLP data.

 4 Because it is beneficially reused,

 5 boiler slag is not commonly stored in surface

 6 impoundments. We regularly test our boiler slag

 7 and it has always passed TCLP testing and has

 8 never exhibited any hazardous waste

 9 characteristics. Our testing of pre- and

 10 post-blast boiler slag, an EPA standard TCLP test,

 11 has confirmed that the resulting leachate meets

 12 drinking water standards.

 13 The scientific information about boiler

 14 slag and its physical properties have not changed

 15 since we began our operations more than 70 years

 16 ago. Regulating boiler slag destined for disposal

 17 as a special waste under Subtitle C would unfairly

 18 stigmatize beneficially reused boiler slag, as is

 19 already evident by competitor actions. We have

 20 seen no evidence that boiler slag meets any

 21 threshold or regulation under Subtitle C, and we

 22 are not aware of any environmental problems linked
 38

 1 to our products.

 2 As an abrasive, we are the primary

 3 alternative to silica sand, an abrasive that

 4 presents serious worker health concerns. We

 5 recognize the need for proper environmentally

 6 sound standards regulating the small percentage of

 7 boiler slag that is discarded rather than

 8 beneficially reused.

 9 Accordingly, consistent with the amounts

 10 used of nearly 30 states and EPA's two previous

 11 determinations evaluating proper management of

 12 coal combustion by-products, we support

 13 appropriate and reasonable disposal standards for

 14 any waste boiler slag under Subtitle D of RCRA.

 15 Thank you.

 16 MR. DELLINGER: Thank you. Would

 17 Numbers 9, 10, 11, 12, and 13 please come forward.

 18 Number 9.

 19 SPEAKER: Good morning, panel. My name

 20 is John Rath. I'm a dad. I'm a citizen in this

 21 local area. I'm an environmental activist. And

 22 I'm honored to be a member of the Lone Star Sierra
 39

 1 Club chapter which covers Texas and surrounding

 2 states. I represent about 30,000 members, six to

 3 7,000 of those being in the Dallas-Fort Worth

 4 area. I want to thank you for being here, for

 5 listening to us, and for the leadership that

 6 you've shown on a number of environmental issues

 7 over the past couple years.

 8 The Sierra Club strongly, strongly

 9 supports Subtitle C of RCRA for coal ash regulations, I

 10 think, for the following reasons. Number one, the

 11 categorization, on a national level, consistent

 12 across all states, being hazardous waste; the

 13 federally enforceable standards that are

 14 consistent across the United States; the coal ash

 15 pond phaseout; the national minimum standards

 16 addressing contamination from oil drums; and

 17 cradle-to-grave management. Those are things that

 18 are very, very important, in our opinion, to

 19 properly regulate coal ash, which is toxic.

 20 I love to hear all the statistics being

 21 thrown at you. I'll let you be the judge of

 22 whether or not they're toxic. I think with your
 40

 1 energy and initiatives to prioritizing the safety

 2 of our citizens, I have no doubt that our safety

 3 will be guarded by your decisions. Thank you very

 4 much. Again, please -- please adopt Subchapter C.

 5 Thank you.

 6 MR. DELLINGER: Thank you. Number 10.

 7 SPEAKER: Good morning, and thank you

 8 for the opportunity to address this important

 9 issue. My name is Michael Brune. I'm the

 10 executive director of the Sierra Club, the

 11 nation's largest and oldest grassroots

 12 environmental organization. I'm here today to

 13 urge EPA to approve the rule that will ensure that

 14 the by-products of burning coal is handled like

 15 the toxic substance that it is.

 16 Toxic coal ash poses serious risks to

 17 human health and the environment. Given the

 18 severity of these risks, enforceable federal

 19 safeguards, not suggested state guidelines, are

 20 necessary to protect our communities. Both EPA

 21 and the National Academy of Sciences have years

 22 of research showing that toxic coal ash is
 41

 1 becoming increasingly toxic. The hundreds of

 2 toxic coal waste dumpsites across the country pose

 3 very real threats to the health of millions of

 4 people living in communities near those sites.

 5 For decades, the coal industry has told

 6 the American people that coal ash is safe, just

 7 like tobacco executives told Americans that

 8 cigarettes don't cause cancer, just like the auto

 9 industry told us that installing catalytic

 10 converters would wreck the industry.

 11 If these examples and the BP oil

 12 disaster and the Tennessee coal ash disaster have

 13 taught us anything, it's just that we can't take

 14 polluters' word for granted anymore. Coal ash

 15 contains a long list of dangerous toxins,

 16 including arsenic, selenium, lead, and mercury.

 17 These heavy metals have been linked to organ

 18 disease, cancer, respiratory illness, neurological

 19 damage, and developmental problems. Do we really

 20 want these chemicals in our water supply?

 21 Despite coal ash's dangerous

 22 characteristics, it is currently less strictly
 42

 1 controlled than household garbage. That's right.

 2 Coal ash is contaminated with dozens of chemicals

 3 known to cause serious harm to people and the

 4 environment, and it's treated with no more care

 5 than an empty bag of pretzels.

 6 Clearly, our current state standards are

 7 inadequate. This is why we're here today. It's

 8 why there are hundreds of people turning out at

 9 every hearing on this issue across the country.

 10 That's why you will receive hundreds of thousands

 11 of comments over the next several months.

 12 We need EPA, we're counting on EPA, to

 13 protect the quality of our air, our water, and our

 14 communities. Effective coal ash regulations must

 15 require basic protections for communities, such as

 16 composite liners, water runoff chemicals,

 17 groundwater monitoring, and financial assurance

 18 that companies pay to clean up what they pollute.

 19 Again, I want to thank you for the

 20 opportunity to speak about this issue. I just

 21 wanted to say that coal ash is toxic. It's

 22 hazardous. It's poisonous. Please regulate it as
 43

 1 such. Please adopt Subtitle C. Thank you.

 2 MR. DELLINGER: Number 11.

 3 SPEAKER: Good morning. My name is

 4 Kevin Walgenbach. I'm the director of Government

 5 Affairs for the National Ready Mixed Concrete

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

 7 thank the EPA for conducting this listening

 8 session on this very important issue.

 9 As a matter of scale, ready mixed

 10 concrete consumes 75 percent of all portland

 11 cement used in this country. We represent over

 12 1,500 concrete producers and 50 state-affiliated

 13 organizations. Concrete is the most widely used

 14 construction material in the world and is produced

 15 and consumed in every congressional district in

 16 our country.

 17 With regard to fly ash, a major portion

 18 of coal combustion residuals, the ready mixed

 19 concrete industry is the largest beneficial user.

 20 Surveys of ready mixed concrete producers show

 21 that over 55 percent of all ready mixed concrete

 22 contains fly ash.
 44

 1 Fly ash is used in combination with

 2 portland cement to impart the following benefits

 3 to concrete: Increased durability and service

 4 life of structures; reduction in waste sent to

 5 landfills; reduction in raw materials extracted,

 6 energy for production, and air emissions,

 7 including CO2; and lower concrete material cost.

 8 While the concrete industry currently

 9 uses about 15 million tons of fly ash annually, it

 10 is estimated that the concrete industry can

 11 increase its current use to more than 30 million

 12 tons per year by 2020, resulting in less fly ash

 13 going to landfills, and reducing the concrete

 14 industry's carbon footprint by 20 percent.

 15 Based on the concrete industry's

 16 extensive use of and reliance on fly ash in

 17 concrete, and after examining EPA's proposed rule,

 18 NRMCA has determined the RCRA Subtitle C

 19 designation for CCRs bound for disposal, while

 20 retaining exemptions for beneficial use, will lead

 21 to the following unintended consequences for the

 22 concrete industry: One, an increase in production
 45

 1 costs and the cost of construction; two, an

 2 increase in potential liability for concrete

 3 producers.

 4 Currently, the regulatory status of

 5 small amounts of fly ash in waste streams from

 6 concrete production and construction is unclear.

 7 Any proposed rule should explicitly state that

 8 such small waste streams from the concrete

 9 industry are exempt and not subject to such

 10 regulations. There will also be litigation which

 11 will target existing structures built with fly ash

 12 concrete.

 13 Three, potentially stricter state laws

 14 impacting beneficial use. For example, a proposed

 15 rule in the state of Maryland states that any

 16 product containing fly ash is to be disposed of in

 17 a special facility authorized to accept fly ash.

 18 More states will inevitably establish similar

 19 laws.

 20 Four, the potential elimination of fly

 21 ash concrete. Hazardous waste stigma and fear of

 22 liability will drive specifying engineers,
 46

 1 architects, and end users to disallow the use of

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

 3 Unified School District has banned the use of fly

 4 ash until the EPA has finalized its decision.

 5 Lastly, five, there will be a drastic

 6 reduction in the durability of our nation's

 7 infrastructure if fly ash in concrete is

 8 disallowed. Thank you for hearing my concerns on

 9 behalf of the ready mixed concrete industry.

 10 MR. DELLINGER: Thank you. Number 12.

 11 SPEAKER: Good morning. I'm Rose Mary

 12 Crawford from Shawnee, Oklahoma. In February of

 13 2009, I agreed to assist the residents of Bokoshe

 14 with finding their voice and having it heard, so

 15 that people would be educated to the conditions

 16 that they're living in in Bokoshe.

 17 When Making Money Having Fun proposed a

 18 fly ash pit, Bokoshe residents were very concerned

 19 about the impact that the fly ash pit would have

 20 on their water. Making Money Having Fun sent a

 21 letter saying that federal and state laws were

 22 very clear as to the prevention of the
 47

 1 contamination of groundwater and surface water and

 2 the runoff entering into the natural streams.

 3 That seemed to not be true, because in

 4 2004 the Department of Mines and the Oklahoma

 5 Corporation Commission let the Making Money Having

 6 Fun company deposit water from oil and gas wells

 7 into the fly ash pit. The conditions were that

 8 the water was running off the fly ash pit

 9 continuously, yet the Oklahoma Department of Mines

 10 inspector went out, month after month, and

 11 reported that there was no water leaving the site,

 12 which wasn't true.

 13 The state agencies ignored us until

 14 October of 2009. We went to a public meeting of

 15 the Water Quality Advisory Council, which is part

 16 of the ODEQ. They met us at the door and they

 17 stated to us, "We know who you are, we know what

 18 you want, and we can't help you." However, we had

 19 a local TV station coming to report on what we

 20 were to say to -- Bokoshe residents were going to

 21 say to the ODEQ. So they decided that they could

 22 speak. The good part of that is that they did
 48

 1 listen.

 2 The next morning they had a meeting.

 3 The executive director had a meeting with the head

 4 of the water department, and they made a decision

 5 that what they could do for Bokoshe is call the

 6 EPA, which they did.

 7 And Kent Sanborn did come out, he did an

 8 investigation, and he did find that Making Money

 9 Having Fun was violating the Clean Water Act.

 10 December 10, 2010, the EPA issued a cease and

 11 desist order.

 12 We have -- our law enforcement's calling

 13 you, and we need help. That's one of the reasons

 14 why we're asking. Our system seems to be so

 15 broken that even our regulators call for you.

 16 So we're asking you to pass Subtitle C

 17 and to quickly move forward to regulation to --

 18 regulations for disposal of fly ash in lime pits.

 19 Thank you very much.

 20 MR. DELLINGER: Thank you. Number 14.

 21 SPEAKER: I'm Jean McMahon. I live in

 22 Fort Gibson, Oklahoma. I want to thank the EPA
 49

 1 for being here.

 2 In listening to the industry talk, I

 3 think Ms. Jackson's got a hard time ahead of her

 4 because it sounds like James Inhofe talking about

 5 CO2. He's got all kinds of scientists, like two,

 6 who will say greenhouse gases don't cause global

 7 warming, but that's all the media will play.

 8 There are like 3,000 scientists who can prove

 9 otherwise. So it's a problem with the media and

 10 who's got the power. So I'm glad you're listening

 11 to the people. I hope that you decide to make --

 12 to rule that coal ash is a hazardous substance, so

 13 it will be more -- so it will be monitored, at

 14 least.

 15 My first concern with the coal ash was

 16 back when I went through Tennessee and I saw -- I

 17 had heard and seen about the rivers of

 18 coal-polluted ash going through the countryside.

 19 When I drove, I saw little spots of, looks like

 20 ash, and I said, oh, I guess that's how they get

 21 rid of it. You think, okay, now the government's

 22 going to do something; we're going to take care of
 50

 1 this stuff; this isn't going to happen again. And

 2 nothing's happened.

 3 Then, in my hometown of Fort Gibson,

 4 they had a newspaper article, "Expert: Fly Ash

 5 Dump Could Be a Problem." There is a cement

 6 company who takes the coal ash from Muskogee coal

 7 plant by -- and that plant's really old. It's

 8 been there since 1930. So I went there. This is

 9 some of the junk that comes down from the -- they

 10 put the waste in these caves, and it's elevated.

 11 It's elevated, and it goes into the river. And

 12 the river is where Fort Gibson gets their water.

 13 It's one thing when you hear about it,

 14 but when it happens to you, you say somebody is

 15 there watching out. But guess what? Nobody is.

 16 Oklahoma is not going to do it. You can't do it

 17 state by state. Oklahoma won't regulate mercury.

 18 They're waiting for the feds to do it.

 19 All our lakes have a problem with

 20 mercury contamination, and people -- pregnant

 21 women don't know that. There are a lot of

 22 children with mental disabilities. Mercury causes
 51

 1 that. Thank you.

 2 MR. DELLINGER: Number 14.

 3 SPEAKER: My name is Harlan Hentges.

 4 I'm a lawyer for the town of Bokoshe, population

 5 450. Please hear today two messages from Bokoshe.

 6 The first message is that state regulation has

 7 failed due to dishonesty. With regard to Bokoshe,

 8 state regulators say no fly ash or water can be

 9 seen leaving the site, when, in fact, fly ash and

 10 water are obviously leaving the site. Regulators

 11 say, this is mine reclamation, when clearly, this

 12 is fly ash disposal. This is a surface

 13 impoundment.

 14 These dishonest statements give state

 15 agency directors an excuse to allow the illegal

 16 dumping to continue. They let the dumping

 17 continue due to pressure from elected officials.

 18 And the elected officials apply that pressure to

 19 satisfy industry campaign donors.

 20 The regulation of fly ash has become a

 21 matter of politics. This situation has created a

 22 deeply personal, difficult, and uphill battle for
 52

 1 the people of Bokoshe. Frankly, you can't do much

 2 to help.

 3 But the one thing EPA can do is treat

 4 fly ash the same as it treats other hazardous

 5 waste. Apply the well-established regulations of

 6 Subtitle C and do not leave us with subjective,

 7 vague, and virtually unenforceable state

 8 regulations that we have now.

 9 The second message from Bokoshe is do

 10 not let beneficial use become an exception that

 11 swallows the rule. In Bokoshe, we know how

 12 industry misuses the term "beneficial use." When

 13 industry talks about beneficial use in Bokoshe, it

 14 means dumping oil and gas wastewater into fly ash

 15 and building a 20-acre mound of fly ash 55 feet

 16 high. This is what industry means in Bokoshe when

 17 it says beneficial use.

 18 Now, we know there are legitimate uses

 19 of fly ash, but recognizing that fly ash is

 20 hazardous won't change those uses. The energy

 21 industry specializes in selling extraordinarily

 22 dangerous products directly to consumers.
 53

 1 Electricity, natural gas, and gasoline can

 2 accidently kill you in an instant in a ball of

 3 fire.

 4 In contrast, fly ash only has the

 5 potential to kill you slowly over a long period of

 6 time. The energy industry should not have a

 7 problem selling fly ash as a product, even if EPA

 8 requires that fly ash be disposed of properly when

 9 it is a waste -- a hazardous waste.

 10 On behalf of the town of Bokoshe and its

 11 450 residents, we strongly urge EPA to strictly

 12 define beneficial use and apply Subtitle C

 13 regulations. Thank you.

 14 MR. DELLINGER: Thank you. Number 15.

 15 SPEAKER: Good morning. My name is

 16 David Miller. And I'm a manager in the

 17 environmental services division of American

 18 Electric Power. AEP ranks among the nation's

 19 largest generators of electricity, owning nearly

 20 38,000 megawatts of generating capacity in the

 21 U.S. and serving approximately 5.2 million

 22 customers throughout AEP's eleven states service
 54

 1 territory. AEP operates a significant number of

 2 CCR disposal facilities in a manner that we

 3 strongly believe is protective of both public

 4 safety and the environment. AEP and our customers

 5 will be directly impacted by the final CCR rules.

 6 AEP supports the development of federal

 7 regulations for CCRs under RCRA's Subtitle D

 8 non-hazardous waste program. AEP believes the

 9 Subtitle D prime option, if revised appropriately,

 10 would be the best path forward and establishes an

 11 environmentally protective program without

 12 destroying CCR beneficial use and imposing

 13 unnecessary regulatory cost on power plants,

 14 threatening jobs, and increasing electricity costs

 15 for our customers.

 16 The Subtitle D prime option is preferred

 17 because it would not require automatic closure of

 18 CCR service impoundments that are operating in a

 19 manner that is fully protective of human health

 20 and the environment. AEP agrees that disposal

 21 units that are not fully protective must either be

 22 upgraded or closed. However, there are many CCR
 55

 1 service impoundments which are perfectly safe and

 2 protective of the environment. There is no reason

 3 why these units should not be allowed to continue

 4 operating.

 5 AEP strongly opposes the regulation of

 6 CCRs as hazardous waste under Subtitle C of RCRA.

 7 Even though CCRs would be labeled special wastes

 8 as proposed, EPA openly admits that CCRs special

 9 waste would be subject to full hazardous waste

 10 controls just like any other listed waste. AEP

 11 believes regulating CCRs as a hazardous waste

 12 would essentially end CCR beneficial reuse.

 13 In a letter to the EPA administrator

 14 dated December 22nd, 2009, ASTM International

 15 stated, we strongly encourage the EPA to consider

 16 the negative implications of classifying fly ash

 17 as a hazardous waste under Subtitle C of Resource

 18 Conservation Recovery Act. Designation of fly ash

 19 as a hazardous waste will require the ASTM

 20 standard for use of fly ash in concrete be revised

 21 to reflect this classification.

 22 A hazardous waste designation, even with
 56

 1 an exclusion for beneficial use, would cause the

 2 ASTM standard for fly ash to be removed from

 3 project specifications due to concerns for legal

 4 exposure, product liability, and public

 5 perception. This will likely result in little or

 6 no fly ash being used for beneficial use in

 7 concrete or other applications that supports the

 8 sustainability objectives, end of quote.

 9 In addition, AEP has ash disposal

 10 facilities that do not meet the current siting

 11 criteria for hazardous waste disposal facilities

 12 and, therefore, would not be able to continue to

 13 receive CCR should EPA choose to regulate CCRs as

 14 a hazardous waste under Subtitle C of RCRA. The

 15 power plants that these facilities serve would

 16 have to transport CCRs great distances to

 17 locations that meet the hazardous waste disposal

 18 facility siting criteria or commercial facilities.

 19 There is much concern that sufficient commercial

 20 hazardous waste landfill capacity wouldn't be

 21 available and be depleted quickly. This would

 22 dramatically increase disposal costs in our
 57

 1 customers' electricity rates without environmental

 2 benefit. Thank you.

 3 MR. DELLINGER: Thank you. Number 16.

 4 SPEAKER: Good morning. I'm Linda

 5 Whelan, senior director of energy and

 6 environmental policy for Dynegy. Dynegy produces

 7 and sells electric energy in the Midwest,

 8 Northeast, and West Coast. Dynegy's power

 9 generation portfolio includes over 3,650 megawatts

 10 of coal-fired generation, which we -- which will be

 11 subject to EPA's final CCR rule. Dynegy supports

 12 the federal regulation of CCRs, and urges EPA to

 13 adopt a rule that will be protective of human

 14 health and the environment and that does not

 15 unduly burden the economy or threaten jobs in

 16 electrical liability.

 17 EPA proposed just such an approach in

 18 either the proposed RCRA Subtitle D or D prime

 19 non-hazardous programs. Dynegy's concern is that

 20 EPA has also proposed a very burdensome and costly

 21 approach that the agency appears to favor, mainly

 22 RCRA Subtitle C regulation as hazardous waste.
 58

 1 Dynegy opposes Subtitle C's regulation of CCRs.

 2 EPA itself has publicly stated there is

 3 no difference in the storage and disposal

 4 requirements under proposed Subtitle D

 5 non-hazardous and proposed Subtitle C hazardous

 6 waste approaches, yet EPA continues to advocate

 7 the Subtitle C approach, even though it will have

 8 the negative consequences of imposing tremendous

 9 additional costs upon the industry, increasing the

 10 cost of power to consumers, causing significant

 11 job losses, and destroying the beneficial use of

 12 coal ash through the stigma and liability concerns

 13 of regulating CCRs as hazardous.

 14 The EPA stated reason for favoring the

 15 Subtitle C hazardous approach is concern regarding

 16 enforcement capabilities, yet federal regulation

 17 of CCRs as non-hazardous provides extensive

 18 enforcement avenues. First, most states already

 19 have robust regulatory programs that apply to CCR

 20 management. Many states are likely to adopt

 21 Subtitle D requirements. Even in the absence of a

 22 state program, CCR facilities must meet Subtitle D
 59

 1 requirements. They are not optional,

 2 unenforceable guidelines.

 3 Two, RCRA Section 7002 requires that any

 4 person, including states, can bring a civil

 5 enforcement action against any facility for

 6 violating any Subtitle D requirement. EPA has

 7 also proposed the extensive public release of CCR

 8 inspection and monitoring data to further enable

 9 this provision.

 10 Three, under RCRA 7003, EPA can also

 11 enforce Subtitle D requirements whenever a CCR

 12 facility may present an imminent and substantial

 13 danger to health or the environment. The

 14 threshold for EPA to abuse this authority is low

 15 as the courts have interpreted RCRA 7003 broadly.

 16 And four, to ensure compliance of CCR

 17 operations, EPA also has separate enforcement

 18 authority under the federal Clean Water Act, as

 19 does the office of surface mining under the

 20 federal Surface Mining and Reclamation Enforcement

 21 Act.

 22 In closing, Dynegy supports the federal
 60

 1 regulation of CCRs as non-hazardous waste. Thank

 2 you.

 3 MR. DELLINGER: Thank you. Number 17.

 4 SPEAKER: Good morning, ladies and

 5 gentlemen. My name is Matt Skinner with GSE

 6 Lining Technology, a company based in Houston,

 7 Texas. Today I'm representing the Geosynthetics

 8 Materials Association, a trade group of 80

 9 companies that manufacture, distribute, and

 10 install geosynthetic materials, including liner

 11 systems. The industry employs 12,000 people

 12 throughout the United States.

 13 Our comment to EPA is very simple. We

 14 request that EPA mandate the geosynthetic lining

 15 of coal ash storage facilities using composite

 16 liner systems. In the shortest terms, use liners,

 17 specifically composite liners. Why? Because they

 18 work. Concerns of safety regarding CCRs are

 19 mitigated if the landfill storage sites are lined

 20 with a composite liner system of a geomembrane and

 21 a geosynthetic clay liner. A composite liner

 22 system prevents the leachate from entering the
 61

 1 environment. Safety concerns regarding surface

 2 impoundments are also mitigated if the

 3 impoundments are lined with a composite liner

 4 system.

 5 The American Society of Civil Engineers

 6 does a regular report card on America's

 7 infrastructure. For the last three report cards

 8 representing over a decade, solid waste has

 9 received the highest grade of any category. My

 10 industry does a great job of taking America's --

 11 treating America's waste, taking care of it

 12 properly and storing it, and protecting the

 13 environment. The materials, technology, and

 14 people exist. The engineers, engineering

 15 techniques, and standards the general contractors

 16 and installers who can build the proper

 17 facilities, and the regulators and inspectors who

 18 assure the work is done correctly. We urge EPA to

 19 use what exists and what is working today.

 20 Further, our industry has continuously

 21 improved over time, and EPA has been a significant

 22 part of that effort. Over the years, EPA has
 62

 1 commissioned nearly 80 studies of the design and

 2 performance of lining systems. We specifically

 3 call your attention to a 2002 study titled:

 4 Assessment and Recommendations for Optimal

 5 Performance of Waste Containment Systems. That

 6 study contains a great deal of pertinent

 7 information on how to construct containment

 8 systems. Most illustrative for today is a graph,

 9 which I'll provide for your review, charting the

 10 leakage rate of different designs over the life

 11 cycle of nearly 200 facilities. The composite

 12 liner system of a geomembrane and geosynthetic

 13 clay liner was demonstrated to have the lowest

 14 leakage rate over all life cycle stages including

 15 a near zero leakage rate after the facilities were

 16 closed and final cover placed. Our materials

 17 work.

 18 Use of composite liner system will

 19 achieve the EPA's mission to protect human health

 20 and environment for all Americans. A brief word

 21 on the hazardous versus non-hazardous question.

 22 While coal ash does contain heavy metals, it lacks
 63

 1 the traditional characteristics of hazardous

 2 materials, radioactivity, or the presence of

 3 infectious medical waste, et cetera. In the

 4 opinion of our trade organization, coal ash can be

 5 properly stored using Subtitle D regulations, a

 6 non-hazardous solid waste designation with

 7 composite liner systems. Thank you.

 8 MR. DELLINGER: Thank you. Number 18.

 9 And while Number 18 is moving to the podium, could

 10 Numbers 19, 109, 201, and 22 move forward.

 11 SPEAKER: Good morning. My name is

 12 Edward Kahl. And I'm a general executive, coal

 13 combustion products for Ameren Corporation.

 14 Ameren will be directly impacted by the final coal

 15 combustion residual rule and very much appreciates

 16 the opportunity to be here today and speak on this

 17 proposal. Ameren is an investor-owned utility

 18 based in St. Louis, Missouri that operates eleven

 19 coal-fired power plants in the states of Missouri

 20 and Illinois. And as a consequence, generates

 21 over two million tons of coal combustion products

 22 each year. Ameren is a member of the Utility
 64

 1 Solid Waste Group and American Coal Ash

 2 Association. And we support the comments provided

 3 by both of those organizations.

 4 I have direct experience, knowledge, and

 5 responsibility in the beneficial utilization of

 6 coal combustion products. Over the past ten

 7 years, Ameren has developed a robust CCP recycling

 8 program. For example, we found so many uses in

 9 the years 2007 and 2008 that we were able to

 10 beneficially recycle more than 100 percent of what

 11 we produced. This was only possible because we

 12 were able to reclaim past production and use it.

 13 In 2009, the amount of ash recycled

 14 dropped to 70 percent. And the projections for

 15 2010 is around 42 percent. Certainly, the

 16 reduction in our ability to recycle CCPs

 17 beneficially is a reflection of the poor state of

 18 the economy.

 19 However, since the issuance of the EPA's

 20 proposed rule that seeks to regulate CCRs, I have

 21 fielded a number of phone calls from current users

 22 questioning the ability to use CCPs. I witnessed
 65

 1 anxious citizens challenging the permitting of a

 2 state-of-the-art landfill for CCPs. And I

 3 attended a Corps of Engineers public meeting where

 4 citizens groups refuted the Corps of Engineers'

 5 ability to use encapsulated CCPs to strengthen a

 6 levee system. The stigma created by the EPA

 7 proposed rule and threat of a hazardous

 8 classification has already created serious

 9 negative business implications. This stigma is

 10 real for me.

 11 Further, I want to state our strong

 12 opposition to the Subtitle C opposite -- option.

 13 I agree with the views of a bi-partisan group

 14 comprised of 165 members of Congress, 45 U.S.

 15 Senators, virtually all the states, other federal

 16 agencies, municipal and local governments, CCP

 17 marketers, beneficial users, unions, state

 18 agencies, and many third-parties which have

 19 maintained that regulating CCPs under RCRA's

 20 hazardous waste program is simply regulatory

 21 overkill that would severely cripple the CCP

 22 beneficial use industry.
 66

 1 After reviewing the eight Bevill study

 2 factors, I have concluded that there is simply no

 3 reason to -- to pursue this approach when other,

 4 better options offer the same degree of protection

 5 without the fears that result from regulating CCPs

 6 under Subtitle C. Thank you very much.

 7 MR. DELLINGER: Thank you. Number 20.

 8 I'm sorry. 109. Excuse me, Number 109. No 109.

 9 Number 201.

 10 SPEAKER: Good morning. My name is Tom

 11 Zorenda. And a lot has already been said --

 12 probably most of it has been said -- but I drove

 13 over here in this rain, and I'm going to get my

 14 words in.

 15 I just want to say that I'm a husband

 16 and father of two, chemical engineer, and worked

 17 in the hazardous waste industry for ten years.

 18 And I have a lot of sympathy for the people of

 19 Kingston, Tennessee, and also what we heard this

 20 morning in Oklahoma. I think it's an illustration

 21 that there has been some negligence from a

 22 standpoint of storage of this material. And I
 67

 1 believe that the agency is working very well to

 2 provide two good options to -- to address that

 3 issue.

 4 But my concern is that we may throw the

 5 baby out with the bath water. And there are some

 6 facts that people should know who are sitting here

 7 today that the EPA has very stringent testing on

 8 determining whether material is hazardous or not.

 9 And there's characteristic waste and there are

 10 listed waste. And now we're in a new area called

 11 special waste. I'm not sure what that means. But

 12 for people not familiar with that, this -- these

 13 materials are not classified as hazardous or

 14 toxic. We've heard people say that. These are --

 15 these are non-hazardous materials, but when

 16 they're not stored properly, you can see what

 17 happens. So we do need to do something

 18 differently on storage.

 19 And I believe that the Subtitle D option

 20 really addresses what the country needs from a

 21 standpoint of making sure these materials are

 22 safely stored, but not creating a hazardous stigma
 68

 1 which will really undo much of the good that's

 2 been done in having these materials used usefully

 3 back in industry.

 4 And we heard about the Bevill amendment.

 5 And while that's still going to be intact, it

 6 doesn't do enough. And you know, we're a

 7 litigious society. We've got a lot of lawyers out

 8 there. And you know what's going to happen if we

 9 try to use in beneficial uses a non-haz material

 10 that's being called hazardous by our government,

 11 we're going to -- we're going to see a lot of

 12 people just back away. The producers of this

 13 material are going to say, you know what, it's

 14 just going to be a lot cheaper if we don't let the

 15 recycling happen. We don't want that material to

 16 get back into the system. So we have to be very

 17 careful in creating this stigma.

 18 So what I would recommend is that we go

 19 ahead with the Subtitle D option, which ensures --

 20 as we heard from our commercialized guy back there

 21 with the liner -- put them in the proper landfill

 22 so it's not dusting and it's properly captured.
 69

 1 But still, let the material go back into reuse

 2 which has been, like somebody mentioned, a really

 3 good example of how when industry puts their mind

 4 to it, we can recycle materials. A very good

 5 program. So thank you for your time. And thank

 6 you for this opportunity, I really appreciate it.

 7 MR. DELLINGER: Thank you. Number 19.

 8 Number 19.

 9 SPEAKER: I'm Ed Watson, senior vice

 10 president of production for Acme Brick Company.

 11 Acme is based in Fort Worth, Texas, and has clay

 12 brick and concrete manufacturing facilities

 13 located in seven states, most in the south central

 14 United States. Acme has direct sales distribution

 15 in four additional states. Our total employee

 16 head count exceeds 3,000 during normal economic

 17 times. I appreciate this opportunity to address

 18 this public hearing and to provide comments

 19 regarding Acme's utilization of coal combustion

 20 residuals in our manufacturing process.

 21 Acme has successfully incorporated

 22 bottom ash and fly ash as a substitute for other
 70

 1 raw materials in the body of our finished product

 2 for over 25 years. In the case of clay brick

 3 manufacturing, we've utilized bottom ash produced

 4 at four different coal-fired generation plants, as

 5 a substitute for raw clay at six of our 24 brick

 6 plants. Bottom ash is an excellent body additive

 7 that helps to stabilize the shrinkage of the brick

 8 body and assist in the -- in the drying and firing

 9 stages of the brick manufacturing process. And it

 10 helps to lower the consumption of fuel used to

 11 fire the brick.

 12 One of our largest plants, which employs

 13 close to 100 employees, has successfully -- was

 14 unsuccessful in making a durable fired brick until

 15 we incorporated bottom ash in 1986. If bottom ash

 16 were not available, we'd be required to mine

 17 additional raw clay and fire it in a rotary kiln

 18 to produce a calcined material for use. Over the

 19 course of the past 24 years, a single Acme plant

 20 has produced over 2 billion face brick; thereby --

 21 and has consumed approximately 640,000 cubic yards

 22 of bottom ash; thereby conserving that same volume
 71

 1 of virgin raw materials and millions of cubic feet

 2 of natural gas. Our utilization of this raw

 3 material also means that the power company is not

 4 required to dispose of the same volume in a

 5 landfill.

 6 In addition to the preceding example,

 7 Acme consumes significant volumes of bottom ash

 8 and fly ash at our seven concrete block plants.

 9 Bottom ash can be used as a replacement for other

 10 virgin raw materials, such as sand, gravel, or

 11 exposed -- or expanded lightweight aggregate. And

 12 fly ash can be substituted for a high percentage

 13 of portland cement used in manufacturing of CMUs.

 14 During the -- the process, CCRs are incapsulated

 15 in the body of the product. We're not aware of

 16 any issues with brick or block containing CCRs

 17 having any hazardous characteristics. This means

 18 that there are no known hazards associated with

 19 the use of products which have been manufactured

 20 using CCR.

 21 We're supportive of the adoption of

 22 Subtitle D for this regulation. If industry were
 72

 1 able to utilize CCRs and overcome potential market

 2 impacts associated with using waste designated

 3 under Subtitle C, would likely require consumers

 4 to implement stringent controls, governing

 5 disposal, transportation, and so forth of this

 6 material. The actual planning and direct

 7 implementation of solid waste programs under

 8 Subtitle D remains a state and local function.

 9 This approach allows states to devise programs to

 10 deal with site-specific conditions and needs.

 11 Acme believes this arrangement is preferred over

 12 stronger federally controlled programs that cannot

 13 effectively deal with the matters specific to

 14 state and local conditions. Thank you for hearing

 15 my comments.

 16 MR. DELLINGER: Thank you. Number 22.

 17 Is Number 109 in the room? Can you come forward,

 18 please?

 19 SPEAKER: Good morning. My name is Mike

 20 Kezar. I'm the general manager of San Miguel

 21 Electric Cooperative, a rural electric cooperative

 22 generation facility located in south Texas. San
 73

 1 Miguel generates power for the benefit of its

 2 member cooperatives who serve approximately

 3 570,000 end user member owners in 114 Texas

 4 counties. The San Miguel facilities were

 5 constructed in the late 1970's during a time when

 6 public policy favored the use of coal for

 7 generating electricity. And San Miguel's members

 8 invested significant resources into the generating

 9 plant and related facilities, including the

 10 adjacent surface mine.

 11 As a not-for-profit cooperative, those

 12 member owners bear all of the costs of owning and

 13 operating the San Miguel facilities, including the

 14 costs associated with regulations such as the CCR

 15 rule currently proposed by the EPA. San Miguel is

 16 willing to support the development of federal

 17 regulations for CCRs under RCRA's Subtitle D

 18 non-hazardous waste program. Furthermore, we

 19 believe that the Subtitle D prime option is the

 20 best -- best pass forward. And the states should

 21 be allowed to take the lead in the implementation

 22 of the program.
 74

 1 San Miguel is opposed to using the

 2 Subtitle C approach. Proposed controls for CCRs

 3 are virtually identical under the C and D

 4 approaches, and they would be expected to provide

 5 the same levels of protection. However,

 6 regulating coal ash under the hazardous waste

 7 rules, would impose unnecessary regulatory costs

 8 on power plants like San Miguel, threatening jobs

 9 and increasing electricity rates.

 10 As previously stated, San Miguel's

 11 member owners, the predominantly rural end of the

 12 line users of electricity, bear the cost of owning

 13 and operating the facilities. And any increase in

 14 a regulatory cost will go directly to the rates

 15 they pay for electricity.

 16 In conclusion, we agree with the many

 17 others who are already on record as opposing the

 18 Subtitle C approach. We have maintained that

 19 regulating CR -- CCRs under RCRA's hazardous waste

 20 program is simply regulatory overkill. There is

 21 just no reason to pursue this approach when the

 22 Subtitle D prime option in coordination with state
 75

 1 programs offers the same degree of protection

 2 without the attendant risks and burdens of

 3 Subtitle C. Thank you.

 4 MR. DELLINGER: Thank you. Numbers 23,

 5 24, 25, 202 and 27 come forward. Number 23,

 6 please.

 7 SPEAKER: I am Diane Reece. I teach

 8 kindergarten in the morning, fifth and sixth grade

 9 science in the afternoon at Bokoshe. In 2000, I

 10 took a petition around our town protesting the

 11 dumping of fly ash in our community. The pit was

 12 just one-half mile from my home and 1.5 miles from

 13 our school. I was concerned about the dust and

 14 the potential health problems. I exercise by

 15 riding a bike and walking the same path that the

 16 treks (sic?) would take.

 17 Despite our protest, the Department of

 18 Mines issued the permit. I decided to trust them

 19 to protect us and I thought that fly ash was safe.

 20 I was so very wrong. For the next eight years,

 21 plumes of fly ash were visible for miles, and the

 22 Department of Mines did nothing. The Department
 76

 1 of Mines has not assessed the health risk created

 2 by the fly ash. In 2002, I was diagnosed with

 3 colon cancer. I had one-third of my colon

 4 removed. My neighbor who rode bikes with me died

 5 of breast cancer. I continued to exercise. I was

 6 diagnosed with breast cancer in 2007. I had a

 7 lumpectomy, chemo, and 25 treatments of radiation.

 8 Two years ago, a friend who walked with me died of

 9 lung cancer. And last year, my next-door neighbor

 10 was diagnosed with non-Hodgkin's lymphoma. Last

 11 week, I heard about another neighbor that had

 12 breast cancer. There are fifteen with serious

 13 health problems within a mile of that pit.

 14 At school, 9 out of my 17 sixth graders

 15 have asthma. Since kindergarten, these children

 16 have attended school 1.5 miles from the fly ash

 17 pit. Bokoshe has a child fighting for his life

 18 with leukemia and his second bone marrow

 19 transplant right here in Texas. He has asked his

 20 mother if he is going to die. He's only 7 years

 21 old.

 22 There are 450 people in the town of
 77

 1 Bokoshe. The number of health problems is

 2 unusually high. And when the Department of Mines

 3 approved the fly ash pit, I thought they would

 4 take care of us and tell us if fly ash was causing

 5 a problem. I've learned over the last 8 years

 6 that the Department of Mines does not have any

 7 idea what fly ash is doing to Bokoshe. The state

 8 regulatory agencies have failed us. And as a

 9 two-time cancer survivor, I can't afford much more

 10 failure.

 11 On behalf of myself, my students, and my

 12 community, I'm asking you to regulate fly ash

 13 under Subtitle C and impose strict and enforceable

 14 rules on the handling of this dangerous waste.

 15 Thank you.

 16 MR. DELLINGER: Thank you. Number 24.

 17 SPEAKER: Hi, I'm Molly Rooke. And I'm

 18 representing the Sierra Club. I live here in

 19 Dallas. And I will be providing some additional

 20 talking -- some additional remarks, and I have

 21 some additional personal remarks that I will

 22 provide in writing later.
 78

 1 The Sierra Club applauds the stronger

 2 Subtitle C option for the regulation of coal ash

 3 because we need strong federally enforceable

 4 standards, not state guidelines. In Texas, we

 5 would especially be in fear of any weak state

 6 guidelines because that would be the best we could

 7 ever hope for. We need to protect our health and

 8 communities from the very real and environmental

 9 risks posed by toxic coal ash.

 10 Both the EPA and the National Academy of

 11 Sciences have years of research showing that coal

 12 ash is becoming increasingly toxic. And it's

 13 clear that we also can't take the polluter's word

 14 that they will protect us and the environment from

 15 harm. Strong federal safeguards need to be issued

 16 quickly before more communities are exposed.

 17 Continuing to ignore scientific and safety

 18 concerns could come at a very high cost. And

 19 we've seen the high cost that's already being paid

 20 by people who live near coal ash. Effective coal

 21 ash regulations must require basic protections for

 22 communities such as composite liners, water runoff
 79

 1 controls, groundwater monitoring, and financial

 2 assurance that companies pay to clean up what they

 3 pollute.

 4 Improved testing methods reveal that

 5 coal ash is significantly more toxic than

 6 originally thought, and has an increased risk of

 7 leaking into waterways. The levels of pollution

 8 like arsenic seeping from coal ash were found to

 9 be significantly higher than what is considered

 10 safe for drinking water. Concentration of metals

 11 and chemicals in coal ash have been found at

 12 levels many times higher than what is considered

 13 hazardous -- currently considered hazardous waste.

 14 Living near a coal ash site is

 15 significantly more dangerous than smoking a pack

 16 of cigarettes a day, according to risk assessment

 17 done by EPA. People living near unlined coal ash

 18 ponds have an extremely high 1 in 50 risk of

 19 cancer. That's more than 22,000 times higher than

 20 what EPA considers acceptable. And the toxins

 21 found in coal ash have been linked to organ

 22 disease, cancer, respiratory illnesses,
 80

 1 neurological damage and developmental problems.

 2 Children are more susceptible to the health impact

 3 of coal ash, a disturbing fact since the EPA has

 4 found that millions of children live near coal

 5 sites.

 6 And we're -- we're -- we are definitely

 7 not in favor of the weak status quo option, which

 8 is Subtitle D. Thank you. And I will be

 9 submitting further comments.

 10 MR. DELLINGER: Thank you. Number 25.

 11 SPEAKER: Hi, my name is Lloyd French.

 12 I'm with Waukesha Pearce Industries, and we are a

 13 construction mining equipment provider. Waukesha

 14 Pearce Industries is very concerned about a

 15 potential environmental protection agency ruling

 16 pertaining to the regulation of fly ash, a coal

 17 combustion product, as a hazardous waste product.

 18 Our company has been providing heavy

 19 construction, mining equipment, and services to

 20 this industry for over 26 years. We are concerned

 21 about the labeling of coal ash and its byproducts

 22 as hazardous material in any form. Our current
 81

 1 MSDS sheets and environmental evaluation of coal

 2 ash handled by our equipment indicate no levels of

 3 toxicity above the regulations required for the

 4 public health and safety.

 5 Our company believes that attaching any

 6 hazardous label to coal ash byproducts will

 7 drastically reduce the ability of our industry to

 8 continue perhaps the best, safest, and most

 9 responsible reuse of coal ash currently known. If

 10 the EPA attaches a hazardous label to coal ash

 11 byproducts, the industries that we supply

 12 equipment to will be forced out of business and

 13 greatly reduce our ability to remain competitive,

 14 along with countless jobs being lost. We feel

 15 very strong about the positive economic benefit

 16 this product has for our infrastructure. This

 17 decision, in our minds, will have a very negative

 18 impact on the economy as a whole, especially

 19 during these tough times. We strongly encourage

 20 your department to please review and reconsider

 21 the consequences of this ruling. Thank you.

 22 MR. DELLINGER: Thank you. Number 26.
 82

 1 SPEAKER: Good morning. My name is

 2 Chris Lechner. I'm executive director of the

 3 Precast Concrete Manufacturers Association of

 4 Texas. I represent twelve Texas manufacturers of

 5 prestressed, precast concrete products. Those

 6 products are used in most of Texas bridges and

 7 buildings, as well.

 8 There are three reasons for my

 9 opposition. Number one is concern regarding the

 10 future availability of fly ash, a useful

 11 ingredient in precast and prestressed concrete.

 12 Number two is simply to question why are we

 13 considering a move that adds to the waste stream

 14 when we have a viable proven method of recycling

 15 this resource. And three, cost is an underlying

 16 implication of my comments.

 17 The precast, prestressed concrete

 18 industry relies on high early strength concrete.

 19 Fly ash actually slows our turnaround time. But

 20 it's added benefits currently outweigh the time

 21 factor; important benefits such as reduced water

 22 usage, improved concrete resistance to chemical
 83

 1 attack, improved concrete strength and durability.

 2 Fly ash works well with Texas aggregates, rock,

 3 stone, and sand, and increases the use of locally

 4 available materials. The Texas Department of

 5 Transportation mandates its use in precast and

 6 prestressed concrete products, as well as other

 7 concrete applications because of its contribution

 8 to durability.

 9 Currently, there is no word if they plan

 10 to change their specification to exclude fly ash

 11 if the classification changes. Either way, that

 12 decision could leave precast manufacturers in a

 13 precarious position if it is relabeled.

 14 Relabeling disposal is really an all-or-nothing

 15 proposal. The burden of a hazardous label by

 16 association penalizes sound reuse practices and

 17 puts up roadblocks to future innovation.

 18 In managing the resource, we have to

 19 continue to take advantage of all available

 20 options for responsible disposal and use.

 21 Engineers and architects rule my world. From

 22 concept through construction, they are part of
 84

 1 everything we make. Just the fact that this is

 2 being discussed has raised -- raised concerns of

 3 availability, liability, and cost. All of a

 4 sudden, an accepted and proven ingredient is

 5 simply relabeled.

 6 A hazardous label will twist supply and

 7 demand. The label will compel producers to

 8 reconsider their sales of ash products, and costs

 9 will go up, supplies will dry up. Engineers and

 10 manufacturers will lose its benefits and be made

 11 to switch to more expensive chemical additives.

 12 Maybe more oversight is warranted, but a

 13 hazard tag is not a solution. It is an

 14 impediment. This is a product that is needed and

 15 has a manageable life cycle. Disposal issues can

 16 be dealt with in a responsible manner that relies

 17 on science and not fear. Thank you.

 18 MR. DELLINGER: Thank you. Number 202.

 19 SPEAKER: My name is David Orr. I'm the

 20 chair of the Ozark Headwaters Group of Sierra Club

 21 in Arkansas. And I am also founder of Arkansans

 22 Against Ash Dumping. We appreciate the
 85

 1 opportunity today to support the proposed Subtitle

 2 C rule that would regulate coal fly ash as a

 3 hazardous waste material. In our state, the --

 4 the regulatory framework is considered by many to

 5 be one of the weakest in the United States. Our

 6 Department of Environmental Quality has little

 7 authority to take enforcement actions of any

 8 significance under the Clean Water Act and other

 9 -- and other environmental laws. We need help

 10 from EPA and from the federal government generally

 11 to put additional pressure on our state and on the

 12 Arkansas Department of Environmental Quality to

 13 take its responsibilities under federal

 14 environmental law more seriously or else take

 15 enforcement over from ADEQ and the other agencies

 16 that are failing in their responsibilities.

 17 And while we have concerns with failure

 18 to enforce existing laws, we are here today to

 19 bring to your attention a growing threat to

 20 groundwater and aquifers in our state, and to our

 21 streams and soils, as well. The unregulated

 22 dumping of coal ash is polluting our state,
 86

 1 especially now in areas where drilling for natural

 2 gas is occurring. We have the Fayetteville shale

 3 formation where hydraulic fracking techniques are

 4 used that cause extensive damage to aquifers,

 5 streams, and soils.

 6 This fracking technology uses massive

 7 amounts of clean water from groundwater supplies

 8 and surface water supplies in fracturing

 9 underground gas-bearing rock. Water is mixed with

 10 toxic drill muds, organic chemicals including

 11 benzene and toluene and other heavy metals. These

 12 pollutants are either left in place or pumped out

 13 of the drill holes and dumped in open pits or

 14 pumped down other holes and ponds, such as is done

 15 in Bokoshe, Oklahoma, just across our western

 16 border near Fort Smith.

 17 We are now informed that fly ash is

 18 being pumped into abandoned drill holes where it

 19 may be leaching into adjacent groundwater

 20 supplies. Because there is no regulation of ash

 21 today, we have no idea how much ash is being

 22 dumped into wells, nor do we know how much
 87

 1 leachate has migrated or will migrate into

 2 aquifers. We have learned that Oklahoma ash is

 3 being hauled into Arkansas for dumping and vice

 4 versa. Clearly, there is now an interstate

 5 commerce in fly ash. We must have federal

 6 intervention and regulation to control the

 7 proliferation of these shipments.

 8 And I will have additional comments to

 9 submit in written form. Thank you very much for

 10 your time.

 11 MR. DELLINGER: Thank you. Number 27.

 12 SPEAKER: My name is Ben Franklin. I'm

 13 here representing Headwaters Resources, of which

 14 I'm director of technical services. Headwaters

 15 Resources markets CC products for over 100 plants

 16 in the U.S., marketing the materials, the ready

 17 mixed cement wallboard, roofing shingles,

 18 manufacturers, et cetera.

 19 The use of fly ash is prevalent in most

 20 all state and federal infrastructure projects.

 21 It's used because it enhances the durability and

 22 lowers the initial cost of the highway paving,
 88

 1 bridge decks, and all other concrete structures.

 2 The use of fly ash significantly impacts the life

 3 cycle cost of the infrastructure in the U.S.

 4 TxDOT has a significant problem with

 5 making concrete that will last, due to the poor

 6 stone and sands available. These aggregates may

 7 be expansive when exposed to highly alkaline

 8 cements and sulfated soils or groundwater. The

 9 best way to mitigate this issue at the lowest cost

 10 is by using fly ash. Without the fly ash in the

 11 state concrete mixes, the cost to the state

 12 taxpayer to pave a mile of roadway or build any

 13 concrete structure will likely double or triple.

 14 In 2008, almost 12 million tons of ash

 15 was recycled and used for beneficial use

 16 applications. Because of the use of ash, the

 17 following was saved or reduced: 15 million tons

 18 of CO2 reduced from our atmosphere, 32 billion

 19 gallons of water was saved, 159 trillion BTU's of

 20 energy, and approximately $5 to $7 billion. You

 21 must keep in mind before ruling that you can only

 22 impose regulation of the sale of the CCPs. You
 89

 1 cannot, however, force the companies to sell CCPs.

 2 I understand there are some people in the room

 3 that would like that avenue.

 4 But keep this in mind, due to perceived

 5 liability, many of the nation's power plants are

 6 considering not selling CCPs at all, which is

 7 counterintuitive to what we're trying to

 8 accomplish here. You must consider that if the

 9 utilities choose not to sell CCPs, anyone that

 10 uses concrete will then be using significantly

 11 more portland cement. And of course, that will

 12 mean more O2 produce -- CO2 produced and polluted

 13 into the atmosphere.

 14 There are other substitutes for fly ash,

 15 but they're small in quantity and all of them are

 16 double or triple in price. Coal ash and other

 17 CCPs are recognized as a beneficial and

 18 environmentally sound material by organizations

 19 such as U.S. Green Building Council, ACI, and AS

 20 -- ASTM.

 21 If the EPA promulgates CCPs under

 22 Subtitle C, it opens to the door to liability and
 90

 1 stigma, some of which is already occurring. The

 2 EPA's unwillingness to come out to -- in all media

 3 forms and state that CCPs are not toxic nor

 4 hazardous when beneficially used is already

 5 crippling the beneficial use of these materials.

 6 The EPA has promoted the use of CCPs through the

 7 C2P2 partnership, and has extensively studied C2

 8 -- CCPs, reporting that they are not hazardous nor

 9 toxic.

 10 We encourage the EPA to reinstate the

 11 C2P2 program fully and to make a public statement

 12 stating that CCPs are not toxic nor hazardous when

 13 beneficially used -- when utilized. Lastly, we

 14 implore the EPA to make the correct and sensible

 15 ruling, that of the Subtitle D option. Thank you.

 16 MR. DELLINGER: Thank you. Can Numbers

 17 28, 29, 30, 31, and 203 move forward? Number 28.

 18 SPEAKER: Hello, I'm Dr. Karen Lewis.

 19 I'm a Dallas area pediatrician and a member of

 20 Physicians For Social Responsibility. As a

 21 physician, I'm here today to strongly encourage

 22 the EPA to assume regulation of coal ash disposal
 91

 1 under Subtitle C of the Resource Conservation and

 2 Recovery Act. Coal ash, the residue left over

 3 after coal is burned, contains some of the world's

 4 deadliest toxins, arsenic, lead, mercury, cadmium,

 5 selenium, and many others. This ash is disposed

 6 at nearly a thousand sites across the nation.

 7 Currently, toxic elements escape from

 8 many of those sites, contaminating the

 9 environment, killing fish, entering underground

 10 aquifers, and poisoning drinking water wells.

 11 This ash is a major threat to the health of Texas

 12 residents. If eaten, drunk, or inhaled, these

 13 toxins can cause significant health problems,

 14 especially cancer, heart and lung damage, kidney

 15 damage, cognitive deficits, developmental delays,

 16 and behavioral problems.

 17 These aren't little known toxins.

 18 Arsenic is a deadly poison historically used for

 19 murder. The EPA has found that if you live near

 20 an unlined wet ash pond and you get drinking water

 21 from a well near there, you may have as much as a

 22 one in fifty chance of getting cancer from
 92

 1 drinking that water.

 2 Lead is a heavy metal so toxic that we

 3 doctors routinely screen young children as they

 4 may have eaten lead-based paint chips. If

 5 poisoned, they need immediate treatment to attempt

 6 to prevent permanent learning and behavioral

 7 disorders. No safe threshold for lead has been

 8 discovered.

 9 Mercury is another heavy metal well

 10 known for its brain damaging effects, especially

 11 on fetuses and young children. Doctors recommend

 12 that pregnant women not eat large fish and limit

 13 their intake of small fish to no more than twice a

 14 week. But why is there mercury in the water in

 15 the first place? According to the EPA's toxic

 16 release inventory, over 75 percent of the mercury

 17 pollution in Texas comes from coal plants. This

 18 is a big problem.

 19 The EPA estimated that 140 million tons

 20 of coal ash are generated annually, making it the

 21 second largest industrial waste stream in the

 22 United States. The current coal ash disposal
 93

 1 sites are inadequate, especially with wet surface

 2 impoundments accounting for about a fifth of them.

 3 Federal regulation is essential to ensure that

 4 coal ash disposal sites adequately protect human

 5 health.

 6 These efforts may be difficult for

 7 businesses in the current economy, but cancer,

 8 brain damage, and death are difficult, too.

 9 Shouldn't human health come first? As fellow PSR

 10 member Barb Gottlieb said, if coal ash is going to

 11 bear a stigma, let it be the stigma of lives that

 12 are lost, not jobs.

 13 Along with many other doctors from

 14 Physicians for Social Responsibility, I strongly

 15 urge the EPA to assume regulation of coal ash

 16 disposal.

 17 MR. DELLINGER: Thank you. Number 29.

 18 SPEAKER: My name is Bob Sparacino. I'm

 19 a father and a concerned citizen that has been in

 20 the -- in the coal combustion products industry

 21 for 25 years and supports a family of -- of three

 22 through my coal combustion products marketing
 94

 1 efforts.

 2 I worry that this reclassification will

 3 have a devastating effect on my ability to support

 4 my family. I do support regulations for coal ash

 5 disposal that protects health of humans and the

 6 environment while encouraging additional recycling

 7 of the materials. This cannot happen if the EPA

 8 designates coal ash as a hazardous special waste

 9 under Subtitle C.

 10 In my line of work, I deal with many

 11 engineers that have express -- that have expressed

 12 concerns over the risks associated with specifying

 13 materials into the projects they design that are

 14 considered hazardous when in a landfill, nor will

 15 the public want these materials in their homes and

 16 schools. I also work with a tremendous number of

 17 end users that are in the process of exploring

 18 other expensive options when this re --

 19 reclassification is made, to avoid any risk of

 20 liability by using coal combustion products.

 21 When the beneficial uses are lost under

 22 this reclassification, we will also lose the
 95

 1 environmental benefits associated with recycling

 2 coal combustion products, including landfill space

 3 and natural resources, as well as avoiding

 4 millions of tons of greenhouse gases by avoiding

 5 the manufacturing of materials that coal ash

 6 replaces.

 7 The EPA can and should enact new

 8 regulations while encouraging additional safe --

 9 additional and safe recycling of coal combustion

 10 products as a more desirable alternative. The EPA

 11 must not designate coal ash as a hazardous special

 12 waste. Thank you.

 13 MR. DELLINGER: Thank you. Number 30.

 14 SPEAKER: I would like to thank the EPA

 15 for the opportunity to speak today. My name is

 16 Bill Gehrmann. I'm the president of Headwaters

 17 Resources, the largest marketer of coal combustion

 18 products in the United States.

 19 The EPA and speakers at the Arlington

 20 and Denver hearings have stated that they feel a

 21 Subtitle C hazardous waste designation would

 22 incentivize the industry particularly utilities to
 96

 1 increase recycling. Waste oil and electric arc

 2 furnace dust have been used as examples where

 3 Subtitle C designation has lead to increases in

 4 recycling.

 5 However, there are substantial

 6 differences when you compare these examples to

 7 coal ash. Disposal cost including treatment for

 8 these two wastes are much higher than those for

 9 coal ash. Under the proposed regulations for

 10 Subtitles C and D, coal ash does not require any

 11 treatment prior to being land-filled. When truly

 12 recycled, oil is typically sold at prices similar

 13 to those of new oil, the product it competes with.

 14 In fact, most recycled waste oil is actually

 15 burned or incinerated as fuel. Electric arc

 16 furnace dust recycling typically results in the

 17 sales of extracted metals, bringing the same

 18 values as virgin metals. These values coupled

 19 with much higher disposal costs incentivize the

 20 recycling.

 21 Fly ash, on the other hand, the coal ash

 22 with the highest beneficial use value typically
 97

 1 sells for 30 to 50 percent of the price of

 2 portland cement. The substantial pricing

 3 incentive is already there. Approximately 44

 4 percent of coal ash is currently recycled. The

 5 theory that the additional pricing incentives will

 6 lead to more beneficial use in an already mature

 7 recycling market does not make sense. No one

 8 disagrees with the fact that under either

 9 proposal, disposal costs will go up.

 10 The utility industry has the ability to

 11 pass these increased costs through to us, the rate

 12 payers. When a utility weighs a potential

 13 liability to beneficial use under Subtitle C

 14 designation, many will minimize risk by sending

 15 all of their coal ash to the landfill. It is a

 16 logical decision when they can minimize their risk

 17 and have increased -- increased cost of disposal

 18 covered by the rate payer.

 19 This is not the case for companies

 20 dealing with waste oil and electric arc furnace

 21 dust. You've already heard that the stigma of the

 22 Subtitle C hazardous waste designation isn't
 98

 1 negatively impacting beneficial use. There should

 2 be no doubt in anyone's mind that the risk

 3 assessment decisions made by utilities specifiers

 4 and beneficial users under Subtitle C will result

 5 in more coal ash going into landfills.

 6 As the administrator has said, it is

 7 time for a commonsense approach. The proposed

 8 engineering standards are essentially the same

 9 under both the proposed regulations for Subtitles

 10 C and D. Enactment will happen faster under

 11 Subtitle D. Don't do it under Subtitle C. Don't

 12 send more coal ash to the landfill. Thank you.

 13 MR. DELLINGER: Number 31.

 14 SPEAKER: Good morning. Thank you for

 15 the opportunity to voice my position on this

 16 important issue. My name is Gary Shelton, and I

 17 am with Boral Material Technologies. Our

 18 company's principle business is coal combustion

 19 products marketing and management. We have been

 20 involved with these activities for over 50 years.

 21 And certainly, we are supportive of the effort to

 22 protect the environment and human health. There's
 99

 1 no doubt about that. We believe that this goal

 2 can be accomplished by regulating coal combustion

 3 products under a Subtitle D classification and

 4 that a Subtitle C classification will be harmful

 5 to the continued and ongoing use of these

 6 products.

 7 The event at Kingston and any other

 8 events are disposal and material management

 9 issues. They were not caused by the material

 10 itself and certainly not a hazardous material

 11 problem.

 12 Currently, one of the largest and most

 13 successful uses of coal combustion products is the

 14 use of fly ash in the production of concrete,

 15 which you've heard here today. This type of use

 16 has a proven 50-year record of successful use that

 17 is safe and productive. Increased use of all of

 18 these types of recovered resources in safe and

 19 appropriate markets is also occurring in other

 20 segments such as the uses as a mineral filler.

 21 These developments are accomplished in a

 22 judicious manner after extensive evaluations of
 100

 1 material performance, safety and environmental

 2 impacts, and the economics of the intended use.

 3 Any type of hazardous classification will

 4 negatively impact usage.

 5 The -- the reality is the stigma issue

 6 is real. I have firsthand experience with

 7 concrete producers, the engineering community, and

 8 various agencies who report that a hazardous

 9 classification will at a very minimum cause these

 10 users -- these CCP users to reevaluate their

 11 practices. A Subtitle C regulation will only harm

 12 the beneficial use of CCPs. The overall effect

 13 will be -- will result in increase of virgin mine

 14 raw materials. CCPs have a proven -- have proven

 15 to be a valuable recovered resource that has been

 16 long recognized by the EPA for its benefits to the

 17 environment and society for many years.

 18 Coal combustion products should be

 19 handled, managed, and stored according to sound

 20 engineering procedures. This should be

 21 accomplished at the plant sites where these

 22 materials are produced in the correct manner.
 101

 1 This goal can be -- can be accomplished without

 2 the risk of decreasing the ongoing and growing

 3 application of these products in a constructive

 4 method.

 5 I encourage the people -- the EPA to use

 6 sound scientific evidence as it makes the final

 7 determination on classification. Such evidence

 8 does strongly suggest that the correct material

 9 classification is Subtitle D. We oppose the

 10 regulation of CCPs as a Subtitle -- Subtitle C or

 11 any hybrid classification. Thank you for your

 12 opportunity.

 13 MR. DELLINGER: Thank you. Number 203.

 14 Is Number 203 here? 204? 205?

 15 SPEAKER: My name is Robert Walker. I'm

 16 from Arkansas. Thank you for the opportunity to

 17 speak. I am -- I believe that these warnings from

 18 the concrete producers is a red herring. My

 19 example is lead paint. The lead in household

 20 paints was banned in 1978. You couldn't buy it

 21 anymore to be used in houses. However, paint is

 22 -- lead is still used in the paint for highways
 102

 1 and bridges because it is not so much a danger

 2 there, and it is -- it has good qualities. I

 3 believe that the regulations will allow the use --

 4 the concrete products the use of fly ash. In

 5 Arkansas, the fly ash is being dumped, it's

 6 getting into the water, it's ruining water wells.

 7 I think it's open and shut that it should be

 8 regulated. And I recommend you use the C

 9 approach, the Charlie. Thank you.

 10 MR. DELLINGER: Thank you. Can we have

 11 Numbers 32, 33, 35, 36, and 206 move forward.

 12 Number 32. Is Number 32 in the room? Number 33?

 13 Number 35?

 14 SPEAKER: Good morning. I'm David

 15 Ditta. And I work for Boral Material

 16 Technologies. Boral's primary business is in coal

 17 combustion byproduct management and recycling. We

 18 specialize in marketing coal fly ash to the ready

 19 mixed concrete and concrete product industries.

 20 Our organization has been marketing coal

 21 combustion byproducts for over five decades.

 22 We support the EPA's efforts to protect
 103

 1 the welfare of citizens and of our environment.

 2 However, we recommend a sensible approach when it

 3 comes to the regulation of coal combustion

 4 byproducts. We feel that a Subtitle C hazardous

 5 regulation will negatively impact the future

 6 success of fly ash in the construction industry.

 7 The harshly label of material that has been used

 8 for decades in concrete is supplementary

 9 cementitious material will undoubtedly have

 10 equally harsh consequences on our nation's

 11 infrastructure, concrete durability, electricity

 12 consumers, and finally the U.S. economy.

 13 The stigma attached with a Subtitle C

 14 designation will grow exponentially. Project

 15 owners, specifiers, architects, engineers,

 16 municipalities, and state department of

 17 transportations will refuse to allow fly ash in

 18 their projects for fear of exposure to future

 19 legal liabilities. The EPA should recognize the

 20 successful utilization of coal ash in the United

 21 States and avoid a path that would negatively

 22 effect the future success of this material.
 104

 1 Accordingly -- according to EPA, when

 2 fly ash is used in concrete, it significantly

 3 reduces the amount of greenhouse gases produced.

 4 The Electric Power Research Institute estimates

 5 that through beneficial uses coal combustion

 6 byproducts reduce CO2 production by 11 million

 7 tons annually. They also estimate that by using

 8 these products, we save over 51 million cubic

 9 yards of landfill space in the U.S. The U.S.

 10 Green Building Council recognizes that fly ash in

 11 concrete contributes to the recycled materials

 12 content in the lead rating system at the same time

 13 as being kept from disposal and landfills.

 14 Finally, we support recycling coal ash

 15 as a safe, environmentally preferable alternative

 16 to disposal. Therefore, we recommend the EPA

 17 regulate coal combustion byproducts under the

 18 Resource Conservation and Recovery Act Subtitle D and

 19 avoid any reference to these byproducts as a

 20 hazardous waste. Thank you.

 21 MR. DELLINGER: Number 33.

 22 SPEAKER: I'm Rel Corbin from Little
 105

 1 Rock, Arkansas. Substituting fly ash for portland

 2 cement creates concrete that is -- has pretty good

 3 compressive strength, but it does not have good

 4 tensile strength to support a load like over a

 5 span. So our highways start crumbling within 15

 6 or 20 years, and that's releasing the dust right

 7 then.

 8 Now, properly -- the properly built

 9 retaining walls may last a long time like beside

 10 the -- where the freeways going through town.

 11 Cinder blocks, you can use fly ash for cinders in

 12 -- in concrete blocks. And they're okay if

 13 they're -- if the design is right and properly

 14 reinforced. But the construction industry has

 15 been using fly ash in cinders all along, decades

 16 -- at least decades. And I don't think they need

 17 that much more. So we're back to storing fly ash

 18 and cinders in heaps or in -- I guess it's sludge

 19 in ponds. Now, if you don't keep those heaps

 20 moistened, dust is going to blow off. That -- all

 21 the toxins from coal dust are going to blow out.

 22 If you moisten it, you're creating a leachate that
 106

 1 is going to leak -- leak and get into water and --

 2 and ground. If you store it as sludge, wet -- and

 3 even if you've got a liner under these ash heaps

 4 or under the ponds, those liners aren't going to

 5 last forever. They're going to disintegrate. And

 6 that poison is going to go into the groundwater or

 7 out under the surface water. So I don't see a

 8 practical way to deal with coal -- byproducts that

 9 coal can -- con -- coal residuals. So I think we

 10 need to really be pushing for other sources of

 11 energy, passive types -- because we have to get

 12 away from coal. There's no solution to dealing

 13 with the coal residuals. Thank you very much.

 14 MR. DELLINGER: I'm sorry. I may have

 15 lost count. Are you Number 36?

 16 SPEAKER: I'm 36.

 17 MR. DELLINGER: Okay. Then I didn't

 18 lose count.

 19 SPEAKER: No, you didn't. My name is

 20 Terry Henrickson. And I am a citizen, and I

 21 oppose Subtitle C. I've been in the concrete and

 22 related business now for some 30 years. I believe
 107

 1 this scare turning fly ash into a hazardous

 2 material has already stopped requests for the

 3 seminars that I've been giving for the last few

 4 years on the use of fly ash in concrete. These

 5 seminars were numerous up to the last six, eight

 6 months, when these hearings started. They have

 7 since stopped. I think there's a scare out there

 8 that they're worried about designing concrete or

 9 buildings with fly ash in them.

 10 I've also been informed by most, if not

 11 all, of the ready mixed concrete producers in

 12 North Texas and Oklahoma that if the stigma comes

 13 in of fly ash, they will be forced to take it out

 14 of their concrete. They're afraid of it. This

 15 scare is real to them. It would be easier to take

 16 it out of their concrete than to fight the stigma

 17 that -- that will arise from it.

 18 There is no doubt in my mind that they

 19 will stop using ash if Subtitle C is put into

 20 place. Like utilities that -- will be forced to

 21 raise our electrical cost to dispose of this ash,

 22 concrete companies will have to charge more for a
 108

 1 less quality product without fly ash. This will

 2 affect all of us.

 3 The Corps of Engineers across this

 4 region are working on air force bases such as

 5 Tinker, Altus, Sheppard Air Force bases. Their

 6 concrete problems they've seen have stemmed from a

 7 lack of a design concrete that they think can be

 8 fixed by the use of fly ash. This is either a

 9 spalling issue, an ASR issue. They will be using

 10 a lot of fly ash, but those general contractors

 11 doing these jobs are going to be asking the same

 12 question our local producers are going to be

 13 asked, and that is the stigma and are they going

 14 to be wanting to do it. Is the EPA or the federal

 15 government ready to handle these questions from

 16 these general contractors doing jobs on these

 17 federal properties.

 18 These are but a few of the examples that

 19 I bring to you today. And I ask you to remember

 20 that there is a lot of reasons why we use it. We

 21 understand what are -- the other concerns are.

 22 But Subtitle D is still the way we need to go with
 109

 1 this. Again, I thank you. Have a good day.

 2 MR. DELLINGER: Is Number 206 here?

 3 SPEAKER: Hi. My name is John Ridell.

 4 I'm a local resident here. I had no idea that I

 5 was going to be speaking today or anything like

 6 that. I came here for an extra-credit opportunity

 7 from my instructor and my teacher at the college.

 8 He told me that I should come up here and talk

 9 about this, and I figured why not.

 10 Really, I've heard a lot of good

 11 arguments on both sides. I personally think that

 12 Subtitle C would be the best way to go because

 13 although, you know, there have been new proposals

 14 about making concrete so that it'll work better

 15 with the coal ash and stuff like that, if you do

 16 not put any regulations on this problem, then it

 17 will continue to be a problem.

 18 Yes, companies can say they try to do

 19 stuff, but there are many who -- many times we

 20 have seen problems with this. You know, I mean,

 21 you'll see trucks driving with it, you'll see the

 22 coal ash flying right out because they don't have
 110

 1 their trucks covered or anything like that.

 2 It's a main problem that a lot of people

 3 have suffered from. There have been cases in

 4 Tennessee and many other places where people and

 5 children have been injured. Imagine your children

 6 growing up with this problem, with piles of coal

 7 ash building up everywhere, contaminating water,

 8 contaminating everything.

 9 There is a main problem. It is a

 10 really, really big problem, and a lot of people

 11 just overlook it and think it's not a big deal.

 12 Coal ash is a problem. It should be dealt with.

 13 I don't want to grow up, I don't want my children

 14 to grow up, with this problem, with contamination.

 15 Arsenic is a very, very dangerous

 16 substance, as well as mercury and the other

 17 contaminants that are in coal ash. And, you know,

 18 one of my projects a while ago was a really

 19 detailed study with arsenic. And I'll tell you

 20 what, it's something you do not want to mess with.

 21 It is in coal ash, and it's been

 22 contaminating our water supplies. It is being put
 111

 1 into big lakes of water. When the lake waters dry

 2 up, it goes up into the air. Being airborne is a

 3 big problem. People have become sick from it, and

 4 they will, if you do not take care of this. Thank

 5 you.

 6 MR. DELLINGER: Is there anyone in the

 7 room with a number lower than 36 that has not

 8 spoken? Okay. We'll move on to Numbers 37, 38,

 9 39, and 40. Number 37. Number 38.

 10 SPEAKER: Good afternoon. My name is

 11 Becky Williams, and I'm here from Little Rock,

 12 Arkansas. There's a bunch of us here from

 13 Arkansas.

 14 I speak from several perspectives. One

 15 is I'm a small business owner, and I've had a

 16 small business for about 15 years. Before that, I

 17 worked in public health for 17 years. I'm also a

 18 mother who has a 25-year-old daughter who is

 19 married, and my son-in-law just got back from 15

 20 months in Iraq. I feel very blessed that he came

 21 back alive, and I guess part of what I feel your

 22 responsibility is is to make sure that he and his
 112

 1 wife have clean water to drink so they don't -- he

 2 doesn't now die back here in the United States

 3 from contaminated water.

 4 I feel like -- you know, I worked in

 5 public health for a long time, and I've seen what

 6 can happen with prevention and how we save money,

 7 much, much more money with prevention than we do

 8 after the fact. My first job was in the intensive

 9 care nursery at University Medical Center. That

 10 was very much after the fact. I saw babies die

 11 because the moms didn't get prenatal care.

 12 And I guess that's what we're talking

 13 about here is prevention. We're talking about

 14 what is a way to make sure that our water is clean

 15 to drink and that we can help prevent on down the

 16 line those deadly, seriously, terrifically

 17 expensive diseases that we can be exposed to.

 18 The last person that I speak for is

 19 myself as an individual. I just love our earth,

 20 and I see -- we are the people that are here to

 21 take care of it. You know, I'm politically

 22 active. I voted for this administration, hoping
 113

 1 that the EPA would be here to protect us.

 2 And I just -- I thank you for these

 3 hearings. I thank you for the opportunity to have

 4 an alternative where you will be here to protect

 5 us. Thank you.

 6 MR. DELLINGER: Thank you. Number 39.

 7 SPEAKER: My name is Gary Harron. I'm

 8 representing Tarrant Concrete in Fort Worth.

 9 Rather than echo most of the speakers

 10 here, I'll start by saying I don't think there is

 11 anybody in this room that doesn't believe and

 12 agree that there needs to be some type of a trump.

 13 I've been in this business well over three decades

 14 now. I was one of the handful that realized the

 15 benefits that coal ash had in our industry from an

 16 early start.

 17 It's been a long road. We -- we have

 18 years of credible -- and I emphasize the word

 19 "credible" -- research and development relative to

 20 the benefits of coal ash in our concrete in terms

 21 of durability, increased durability, control,

 22 strength gains, and service life.
 114

 1 I heard a gentleman a while ago talking

 2 about roads crumbling and all of that. We are

 3 designing concrete now, performance concrete, with

 4 a service life of 100 years, and that's in part

 5 due to the performance-based specifications, coal

 6 ash being a big part of that.

 7 What I wanted to focus on is maybe the

 8 impact of labeling this as a hazardous material.

 9 I've heard -- all things mention, you know, the

 10 negative impact it would have with the engineers,

 11 the associations, all involved with the concrete

 12 industry, but what I haven't heard that anybody

 13 has considered is what about the structures that

 14 we have that are in place. What's to stop the

 15 humongous litigation that we're hooking ourselves

 16 up to for existing structures if this product is

 17 labeled as a hazardous material? Thank you for

 18 listening.

 19 MR. DELLINGER: Number 40.

 20 SPEAKER: Hi. My name is Walt Baum, and

 21 I am testifying today on behalf of the Association

 22 of Electric Companies of Texas, or AECT. We are
 115

 1 an industry trade association representing the

 2 different electric companies in the state. Our

 3 AECT members have a general interest in EPA's coal

 4 combustion residuals proposed rule as our members

 5 own and operate electric-generating plants that

 6 are impacted by this rule. I'm here today

 7 representing our members that own coal plants in

 8 Texas.

 9 Texas contains the largest electric

 10 market in the country. We generate 80 percent

 11 more electricity here than in any other state, and

 12 we're different from other states because about 80

 13 percent of our electric load is contained within

 14 ERCOT, our own intrastate electric grid, and we

 15 have very limited connection with the Eastern and

 16 the Western interconnects.

 17 We truly are an island, and we're

 18 responsible for generating the electricity that

 19 our growing population needs, and we aim to

 20 maintain a very diverse fuel mix, using coal,

 21 natural gas, nuclear and wind, where we lead the

 22 country in renewables, to allow the state to hedge
 116

 1 the benefits and challenges inherent in each of

 2 these fuel sources.

 3 Baseload coal generation accounts for

 4 about 38 percent of the electricity generated in

 5 Texas. According to studies done by the noted

 6 economist, Ray Perryman, coal production and use

 7 in Texas creates over 33,000 jobs and contributes

 8 over $10.5 billion to the Texas economy.

 9 Regulation of CCRs as a hazardous

 10 material potentially would threaten electric

 11 liability and it would increase electricity prices

 12 for consumers and businesses due to the

 13 significant compliance costs on generators.

 14 In some cases, these costs would be

 15 sufficiently high to render certain fuels, such as

 16 Texas lignite, uneconomic, and result in power

 17 plant and/or mine closures that would cost Texas

 18 jobs and tax revenue at a time when both are in

 19 short supply and at a time when Texas, unlike many

 20 regions of the country, is experiencing record

 21 electricity demand and sustained growth.

 22 Across the industry, the proposal for
 117

 1 regulation of CCRs as a hazardous material under

 2 Subtitle C would strip the states of the ability

 3 to cost-effectively regulate CCR disposal

 4 practices and would impede the beneficial reuse of

 5 CCRs. On four separate occasions, most recently

 6 in 2000, EPA made a regulatory determination that

 7 concluded that Subtitle C of RCRA is not the

 8 appropriate regulatory regime for regulating CCRs

 9 and that regulation as non-hazardous waste by the

 10 states is the appropriate option for ensuring the

 11 safe management of these materials while

 12 preserving recycling.

 13 The Texas Commission on Environmental

 14 Quality oversees the design, construction,

 15 monitoring, reporting, and final closure of all

 16 CCR disposal facilities. TCEQ's robust state

 17 regulatory program ensures the disposal and reuse

 18 of CCRs are conducted in a manner that is

 19 protective of human health and the environment.

 20 In summary, AECT strongly opposes the

 21 regulation of CCRs as a hazardous material and

 22 believes that Texas has a protective program that
 118

 1 does not need a new federal program. Thank you.

 2 MR. DELLINGER: Numbers 42, 117, 44, 45,

 3 and 207. Number 42.

 4 SPEAKER: My name is Bob Folser, and I'm

 5 here as chairman of the Texas Concrete Pipe

 6 Association, representing the precast concrete

 7 industries in Texas, 12 companies in 31 locations,

 8 with over 12,000 employees. I am here to express

 9 our concern about the potential EPA ruling

 10 pertaining to the regulation of fly ash, a coal

 11 combustion product, as a hazardous waste material.

 12 The Texas DOT and many Texas

 13 municipalities encourage the use of fly ash for

 14 various reasons. Among the numerous benefits

 15 derived from using fly ash in concrete are

 16 improved longevity, increased strength and

 17 enhanced durability, all of which cannot be fully

 18 replaced by alternate means. Increasing the

 19 longevity of our infrastructure alone has huge

 20 positive implications for natural resource

 21 conversation and energy savings.

 22 We believe that regulating fly ash as a
 119

 1 hazardous waste would have significant negative

 2 consequences that could potentially undo years of

 3 advancement in concrete durability. We believe

 4 that the fly ash market would virtually stop

 5 existing if the EPA designates fly ash as a

 6 hazardous waste, even if there is in place a

 7 beneficial reuse exemption.

 8 Perceptions of fly ash will be

 9 negatively impacted. When material is deemed

 10 hazardous, there is no worse designation in the

 11 public's mind. Granting an exemption will not

 12 remove the emotional and mental stigma attached to

 13 the material.

 14 We believe fly ash storage by concrete

 15 producers would be affected. We anticipate that

 16 concrete producers will be faced with issues such

 17 as added expenses to install special silos and

 18 handling practices to store and use fly ash in

 19 concrete.

 20 The present or future use of fly ash, if

 21 classified as a hazardous waste, could expose

 22 federal, state and local agencies, as well as the
 120

 1 concrete industry, to significant legal

 2 liabilities if linked to safety exposures. In

 3 fact, because of the potential exposure and

 4 liability issues, fly ash generators may cease the

 5 beneficial reuse of fly ash and choose to landfill

 6 all that is generated.

 7 For the reasons stated above, the Texas

 8 Concrete Pipe Association respectfully requests

 9 that the EPA considers these impacts to our

 10 operations and deems that CCRs be regulated under

 11 Subtitle D, non-hazardous material with beneficial

 12 reuse capabilities. Thank you.

 13 MR. DELLINGER: Thank you. Number 43.

 14 Number 44.

 15 SPEAKER: Good afternoon. My name is

 16 Bobby McNeeley. I am the chemical environmental

 17 supervisor at Luminant's Big Brown Power Plant in

 18 Freestone County. Thank you for the opportunity

 19 to provide a statement today.

 20 As part of my responsibilities to Big

 21 Brown, I ensure that our power plant complies with

 22 Texas Commission on Environmental Quality's coal
 121

 1 combustion residuals handling and disposal

 2 regulations. These regulations are comprehensive

 3 and effective. As a whole, Luminant is in

 4 compliance with TCEQ's CCR regulations, and we

 5 have never experienced a failure at any of our

 6 facilities.

 7 I take my work very seriously, as do my

 8 fellow co-workers. We live in the communities

 9 where CCRs are stored and disposed, so we owe it

 10 to our employees, our communities, and the

 11 environment to manage CCRs safely and responsibly.

 12 And in my 30 years with the company,

 13 I've seen great benefits from the recycling and

 14 reuse of CCRs. By actively pursuing opportunities

 15 to recycle CCRs, Luminant has helped decrease

 16 energy costs, reduce emissions, save landfill

 17 space, and use less natural resources.

 18 Since 1993, Luminant has sold nearly 40

 19 billion pounds of CCRs, including 2.2 billion

 20 pounds in the last year alone. These products

 21 have been used by the roofing and concrete

 22 industries, as you heard, as well as in oilfield
 122

 1 projects and for road paving.

 2 There is a long list of projects across

 3 our state that have benefitted from the reuse of

 4 CCRs from Big Brown and other power plants --

 5 Luminant power plants. Here are just a few:

 6 Dallas's High Five Interchange, DFW Airport, State

 7 Highway 121, Radio Shack's corporate office in

 8 Downtown Fort Worth, City of Dallas Fire Station

 9 Number 40.

 10 As you can see, not just industry

 11 benefits from the reuse of CCRs. Our communities

 12 and our neighbors do, when they commute to work,

 13 catch a flight, or depend on emergency services.

 14 Designating CCRs as hazardous would have

 15 a devastating effect on the recycling of this

 16 by-product, leading to higher costs and job losses

 17 across many industries. A hazardous

 18 classification would destroy a viable and

 19 environmentally beneficial market. And it's

 20 important to note that on four separate occasions,

 21 most recently in 2000, EPA determined that the

 22 regulation of CCRs was not warranted.
 123

 1 As such, Luminant, in addition to over

 2 200 members of the U.S. Congress, 43 states, and

 3 numerous federal agencies, strongly opposes the

 4 regulation of CCRs as a hazardous material under

 5 the RCRA Subtitle C hazardous waste program and

 6 recommends that EPA continue to allow states to

 7 run their own programs. Thank you.

 8 MR. DELLINGER: Thank you. Number 45.

 9 SPEAKER: Hi. My name is Allison Sliva.

 10 I'm from Bay City, Texas, and I run a county on

 11 the Texas Gulf Coast. I'm not a paid spokesman.

 12 I'm here on my own time. I represent a group in

 13 our county called No Coal Coalition, and we are

 14 fighting a plant that wants to come into our

 15 county called White Stallion Energy Center, and

 16 I'm proud to say we're now 800 members strong.

 17 We definitely support regulating coal

 18 ash as a special waste and treating it as a

 19 hazardous substance, and this under the Resource

 20 Conservation and Recovery Act of Subtitle C.

 21 We all know coal ash contains lead,

 22 mercury, arsenic, selenium, cadmium, boron,
 124

 1 sulfate, and a whole bunch of other things I can't

 2 even pronounce. This stuff is poison. There are

 3 no acceptable levels of exposure to mercury and

 4 lead. The toxicity of these is measured in

 5 micrograms. I find it a little bit unnerving that

 6 we're talking about concrete and I'm talking about

 7 people.

 8 These toxins, these poisons, are

 9 leaching into our water. I come from a rural

 10 county. No one really pays attention to us. We

 11 have no independent monitoring of our air or

 12 water. In fact, you can put our county three

 13 times into Texas Memorial Stadium in Austin.

 14 We're a small county. No one's paying attention

 15 to us.

 16 But we have farmers. We have ranchers.

 17 We're an ag community. We have fishing. We have

 18 shrimping. What the heck is this going to do to

 19 our water? This coal pit that wants to move into

 20 our county, its ash site, its disposal site, is on

 21 the Colorado River.

 22 We evacuated for Ike. We evacuated for
 125

 1 Rita. You notice we're having a little weather

 2 event right now. What's going to happen when all

 3 that water hits this ash and it leaches into our

 4 river? We're just upriver from Matagorda Bay and

 5 the Gulf of Mexico.

 6 I have no faith in the Texas Commission

 7 on Environmental Quality. If you look at the

 8 recently posted proposed air quality standards for

 9 the state of Texas, it shows 75 percent of Texans

 10 will be breathing, are breathing, dirty air. If

 11 TCEQ were doing its job, 75 percent of Texans

 12 should be breathing clean air.

 13 I'm tired of us talking about wealth

 14 over health, and I beg the EPA to step in and

 15 protect our communities and our families. I voted

 16 for this administration for just -- one of the

 17 very reasons I voted for you guys and this

 18 administration, and I hope you will regulate toxic

 19 coal ash. Thank you.

 20 MR. DELLINGER: Number 178.

 21 SPEAKER: Hello. I heard that

 22 passionate speech. My name is Mike Malone. I
 126

 1 work for CPS Energy in San Antonio. We are

 2 municipally owned. We're the largest municipally

 3 owned power electric and gas company in the United

 4 States. We recycle over 97 percent of our coal

 5 residuals. We recycled approximately over 300,000

 6 tons last year. Essentially that amounts to about

 7 300,000 cubic yards of material diverted from

 8 landfills. Since the early '90s, we recycled over

 9 6 million tons of CCRs.

 10 Recycling CCRs is a beneficial use. It

 11 lowers the cost to rate payers. We anticipate

 12 that this could cost up to over $100 million in

 13 annual transportation to local landfills. CPS

 14 Energy expects to generate approximately 600,000

 15 cubic yards of CCRs per year over the next 20 years,

 16 totaling 25 million cubic yards over the next 50

 17 years.

 18 CPS Energy believes that a Subtitle C

 19 designation would be counterproductive by

 20 increasing the amount of CCRs landfilled and

 21 impounded nationally because of the stigma that

 22 will be placed on CCRs. The failure of the 2008
 127

 1 Kingston power plant ash impoundment was an

 2 engineering issue and failure, not a material

 3 classification issue.

 4 The increase in landfill impoundment of

 5 CCRs would only increase the chance of another

 6 Kingston-type failure, not reduce it. Thank you.

 7 MR. DELLINGER: Number 41, 43, 207, 208,

 8 and 209.

 9 SPEAKER: My name is Jacob George. I

 10 was a sergeant in the Army. I did three tours in

 11 Operation Enduring Freedom. I am now a homeless

 12 veteran by choice. I wrote a poem for the EPA

 13 that I want to read today. It's called "Dear EPA,

 14 Please Do Your Job."

 15 Have you seen Arkansas sandstone? This

 16 rock is breathtaking. This rock is my home. Home

 17 used to be creeks and lakes where anybody could

 18 swim. Now the water tables are contaminated for

 19 cheap change. Trust me, I understand having too

 20 much to do. I did three tours in Afghanistan to

 21 protect you. But I did my job and now I'm home.

 22 It's your turn. Protect our water and protect my
 128

 1 Arkansas sandstone. Thank you.

 2 MR. DELLINGER: Number 41.

 3 SPEAKER: Good afternoon. My name is

 4 Donald B. Thomas. I have been selling fly ash,

 5 marketing fly ash, for over 22 years. I began

 6 working for a small, family-owned business and

 7 have marketed material in seven different states.

 8 Currently I cover an area of four states in the

 9 Southeast and have hundreds of customers.

 10 Like many other people said today,

 11 pointed out the quality and benefits that fly ash

 12 can add to concrete, workability, increase in

 13 strength, and most importantly, improving

 14 durability, which can extend the life of concrete

 15 structures and reduce maintenance costs.

 16 But I'm of the opinion that the strength

 17 requirements proposed by Subtitle C would

 18 significantly impact the longevity of our concrete

 19 structures, including roads, bridges, and

 20 buildings, and the stigma attached to this

 21 classification of fly ash as a hazardous waste

 22 under Subtitle C will affect the amount of fly ash
 129

 1 produced.

 2 To me, whether you're a salty old

 3 politician that's been running for office for 40

 4 years, or a junior high or high school student, to

 5 have a label that's unfair -- we all know what

 6 labels can do. And I think by classifying or

 7 labeling fly ash as a toxic hazardous waste, it's

 8 a label that will take, you know, years to

 9 overcome, and all the promotion in the world is,

 10 you know, going to be affected by that label.

 11 In a day and age when sustainability is

 12 of paramount importance to our environment, I

 13 believe that classifying fly ash under Subtitle C

 14 would be devastating to our future. I'm concerned

 15 about the cost of living, the restrictions imposed

 16 on my family and I, and the increased cost of

 17 electricity, the increased cost of building a

 18 home, the increased cost to stabilize and pave

 19 roads that we use every day. Fly ash reduces

 20 construction cost, it reduces CO2 emissions, and

 21 it improves sustainability.

 22 I strongly urge you to prevent the
 130

 1 regulation of fly ash under Subtitle C and not

 2 label that negatively. Thank you.

 3 SPEAKER: Thank you for allowing me to

 4 testify. My name is Oneal Couvillion. I come

 5 from Walker, Louisiana. I'm here today to ask you

 6 to put stronger regulations on coal ash.

 7 This is an article that tells about coal

 8 ash, what it is, what it contains, your arsenic,

 9 and stuff like that. It pollutes the air, water,

 10 and soil. Where is the positive? Thirty-four

 11 percent into landfills, 22 percent in surface

 12 impoundments, 37 in construction, 8 percent in

 13 mines. This is what happens when 1 billion tons

 14 -- 1 billion tons of coal ash destroys a town and

 15 environment.

 16 This is an article from Scientific

 17 American dated December 13, '07, that states coal

 18 ash is more radioactive than nuclear waste because

 19 of what's burned. It concentrates it.

 20 Now, I have this that says, "Do I Live

 21 Near Coal Ash?" This is for Louisiana residents.

 22 And my answer is, yes, I do. Okay. Big Cajun
 131

 1 Number 2 Power Plant, New Roads, Louisiana.

 2 Now, the reason I say that is because --

 3 let me get there -- Waste Management -- this is a

 4 copy of an industrial waste code that's used by

 5 Waste Management given by DEQ. They get 2,839.93

 6 tons of ash -- that was last year -- and 16,832.3

 7 tons of carbon/carbon black/coke/coal. This was

 8 last year.

 9 It's a shame. People who live around

 10 there really know what the dangers of coal ash is.

 11 Thank you very much.

 12 MR. DELLINGER: I'm going to ask for

 13 Numbers 203, 204 or 208 here. And 210, 211, and

 14 212. Number 203.

 15 SPEAKER: Good afternoon. My name is

 16 Nicholas Parnell. I'm a student at Southeastern

 17 Louisiana University. I'd like to thank you for

 18 the opportunity to express my concerns regarding

 19 the regulation of coal ash.

 20 Like most of those offering testimony

 21 this week, I'm concerned about how easy it is for

 22 coal ash to enter into and contaminate our
 132

 1 environment. The fact that toxic heavy metals

 2 that are associated with coal ash can cause

 3 nervous system diseases and disorders strikes a

 4 personal chord with me.

 5 When I was a child, I was diagnosed with

 6 a rare and deadly nervous system disorder called

 7 thermonuceria, which means that my body is unable

 8 to naturally regulate its own internal

 9 temperature. There is no treatment or cure. The

 10 only way to ensure one's safety is to severely

 11 limit physical activity and exposure to heat, just

 12 as a diabetic has to monitor their sugar

 13 consumption.

 14 Mild reactions can include itching,

 15 rashes, temporary loss of sensation of touch, or

 16 sporadic, painful shocking sensations throughout

 17 the body. Severe situations can lead to seizures,

 18 fainting and death even in environments where a

 19 person with a normally functioning regulatory

 20 system would feel only mildly uncomfortable.

 21 As a child, when other kids ran and

 22 played at recess, I had to sit in the classroom
 133

 1 alone or near a teacher. When my siblings went to

 2 pick berries or go fishing or build a fort in the

 3 woods, I had to stay home alone. I grew up

 4 detached from society, bitter to all those who

 5 didn't have to live with the limitations I have.

 6 Having such minimal interactions with others means

 7 that today, as a college student, I'm still

 8 developing social skills that my peers acquired

 9 decades ago.

 10 Although as an adult I now have greater

 11 control over my reactions, my disorder has been a

 12 hindrance in my career. I have had to pass up

 13 promotions and other opportunities that require

 14 working in an unprotected environment.

 15 By strictly regulating coal ash, the EPA

 16 will be protecting all citizens from exposure to

 17 toxic chemicals associated with it and thus

 18 substantially reducing their chances of developing

 19 medical disorders like mine or even something

 20 worse.

 21 Our only hope is that the EPA will fight

 22 to protect us, as the energy companies have used
 134

 1 their overwhelming power to force us, ordinary

 2 citizens, into a non-consenting, damaging

 3 relationship, just as pedophiles seek to victimize

 4 those who are weaker and unable to defend

 5 themselves. The proposals of Subtitle C are our

 6 only real protection from such environmental

 7 molestations. Thank you.

 8 MR. DELLINGER: Number 210.

 9 SPEAKER: Good afternoon. My name is

 10 David Griggs, from Dallas. I am an attorney and

 11 an adjunct professor of government at Brookhaven

 12 College. I'm also a former federal civil

 13 prosecutor with the FTC. Today, I am mostly here

 14 as a concerned citizen. Thank you for the

 15 opportunity to make some brief remarks during the

 16 comment period of the coal ash ruling.

 17 As a former government employee, I'm

 18 certainly familiar with the regulatory process. I

 19 actually worked for a regulatory agency. I

 20 applaud you for the willingness to make this an

 21 open process and public, freely accessible. Thank

 22 you for that.
 135

 1 I want to commend you also for

 2 recognizing the very real health and environmental

 3 risks posed by the toxic coal ash. Against the

 4 seriousness of these risks, enforceable federal

 5 safeguards, not suggested state guidelines, are

 6 necessary to protect our communities.

 7 From what I have learned, improved

 8 testing methods reveal that coal ash is

 9 significantly more toxic than originally thought

 10 and has an increased risk of leaking into our

 11 waterways. The levels of pollution, like arsenic,

 12 seeping from coal ash have been found to be

 13 significantly higher than what is considered safe

 14 for drinking water.

 15 Therefore, I support Subtitle C of your

 16 choices, which would impose federal safeguards --

 17 excuse me -- federal standards for regulating coal

 18 ash as a special waste, requiring permitting,

 19 monitoring, standards of transport, phasing out

 20 wet ponds and so forth, while allowing for

 21 beneficial use.

 22 I would also encourage you to include
 136

 1 that coal ash be in cessation until a government

 2 study has proven that the uses are not harmful in

 3 the immediate or long term to our public health

 4 and safety.

 5 The status quo of state guidelines is

 6 not substantially different from what we have now.

 7 Few, if any, changes would be accomplished by

 8 that. State regulation is not enough. Despite

 9 the known toxicity of coal ash, a vast majority of

 10 states do not even require monitoring to see if

 11 coal ash is polluting the water.

 12 That's why the federal government must

 13 act. Now is the time. If not, when? So don't

 14 miss this opportunity. For the sake of our health

 15 and safety, I urge you to adopt Subtitle C in your

 16 rule-making process. Thank you for the time.

 17 MR. DELLINGER: Number 208.

 18 SPEAKER: Hello. Thank you for allowing

 19 me to speak today. I have a note from my

 20 landlord. "I worked power plants for 26 years,

 21 coal burners. Fly ash is unhealthy for humans."

 22 That puts it really simply. This note was written
 137

 1 by, William Faddis, my neighbor in North Arkansas

 2 who couldn't be here today. He tells me often of

 3 his fellow boiler makers who are dead or dying

 4 because of coal ash. To say it is unhealthy is an

 5 understatement, and he would like for you to

 6 declare coal ash a hazardous waste. Thank you.

 7 MR. DELLINGER: Number 211.

 8 SPEAKER: Hi. My name is Jacob

 9 Delahoussage, and I'm from Lafayette, Louisiana.

 10 I'm here as a citizen. Thank you for the

 11 opportunity to speak.

 12 I used to think that the movement to

 13 protect our environment was about stopping the

 14 clear-cutting of forests and the violent

 15 destruction of mountains using dangerous

 16 explosions. As I got more involved, I realized

 17 that it isn't just the mountains and the trees

 18 that can't speak up for themselves. We also need

 19 protecting because we don't always have the

 20 opportunity to speak up for ourselves.

 21 Today, I'm here to speak for all those

 22 whose well water has been contaminated by toxins
 138

 1 like arsenic, mercury, lead, selenium, from coal

 2 ash. Coal ash needs to be regulated. It is a

 3 toxic, dangerous substance, and Subtitle C is the

 4 correct choice because it puts regulation in the

 5 hands of the federal government. It protects us.

 6 I understand that this will likely

 7 increase cost for cement production, but I am more

 8 concerned with the health of my family, my

 9 community, and the future generations. Money is

 10 not the important issue here right now. Health

 11 is. Thank you.

 12 MR. DELLINGER: Number 212.

 13 SPEAKER: Thank you. My name is Ilan

 14 Levin. I'm senior attorney with the nonprofit

 15 Environmental Integrity Project. The

 16 Environmental Integrity Project's mission is to

 17 promote strict enforcement of the nation's

 18 anti-pollution laws. I want to thank you for the

 19 opportunity to let us speak today.

 20 About halfway between Austin and Houston

 21 is a large coal-fired power plant. It's in

 22 Fayette County, Texas. It's called the Fayette
 139

 1 Power Plant. It's operated by the Lower Colorado

 2 River Authority. Groundwater sampling on the site

 3 shows levels of selenium, cobalt, and molybdenum

 4 that exceed drinking water standards.

 5 The Texas Commission on Environmental

 6 Quality has notified a couple of neighboring

 7 landowners that their wells may be contaminated.

 8 But that's just the tip of the iceberg. The real

 9 issue and the real concern today is what we don't

 10 know because of the remarkable lack of groundwater

 11 monitoring in Texas and across the country.

 12 The threat to public health and the

 13 damage to the environment that is documented by

 14 EPA and others in recent reports is mounting

 15 evidence of the accumulating harm from poorly

 16 regulated coal combustion waste disposal sites.

 17 The quantum leap in coal ash sites with documented

 18 contamination from the seven sites identified by

 19 EPA in its report to Congress in 1999, to about

 20 137 sites that we know about today, demonstrate

 21 that whenever we look, whenever we do groundwater

 22 monitoring, onsite or offsite, we invariably find
 140

 1 contamination at virtually every coal ash pond and

 2 landfill currently operating.

 3 The Electric Power Research Institute,

 4 EPRI, and some state agencies stubbornly insist

 5 that coal ash is safe because it passes the EPA's

 6 toxicity leaching test, but the National Research

 7 Council warned in 2006 that the leach test was not

 8 an accurate method for measuring the leaching

 9 potential for toxic metals.

 10 In closing, let me say that

 11 contamination of the environment and water

 12 supplies with toxic levels of arsenic, lead, and

 13 other chemicals is a pervasive reality at

 14 America's coal ash disposal sites because states

 15 are not preventing it.

 16 The case for a national recommendation

 17 setting common-sense safeguards for states to

 18 meet, such as liners, monitoring, cleanup

 19 standards, could not be more persuasive, and the

 20 need for direct EPA involvement is clear. Thank

 21 you very much.

 22 MR. DELLINGER: Numbers 213, 214, 215
 141

 1 and 216. Numbers 217, 218, 219, and 220. Numbers

 2 221, 222, 223, 224. Whoever has the lowest number

 3 come forward. It looks like 217.

 4 SPEAKER: Hello. I'm John Gray, from

 5 Fayetteville, Arkansas, actually a little town

 6 called Greenland, which is a suburb of

 7 Fayetteville.

 8 I'm a member of Clean Air Arkansas, who

 9 work for clean air; also a member of the Ozark

 10 Headwaters -- a member of the Ozark Headwaters

 11 organization, and I work to clean up the waterway

 12 of the White River that feeds into the lake that

 13 is our water supply up there.

 14 So I'm very concerned that we do

 15 anything technically feasible to minimize any

 16 pollution that enters into our groundwater system.

 17 We have a lot of (inaudible) oils up there. Water

 18 leaches things into our water table and our

 19 drinking water very, very easily. So,

 20 consequently, any kind of a dump site or -- any

 21 kind of a dump site or contaminating process is of

 22 great interest to us.
 142

 1 One of the things that -- I'm glad I'm

 2 not on this panel up here because their decision

 3 -- they're faced with Option C, which, as I listen

 4 to this, will end the world as we know it, and

 5 Option D, which basically, according to my

 6 mentors, has little or no inspection capability.

 7 One of my teachers was a guy named

 8 Edward Deningham. He taught that if you don't

 9 have frequent, random inspections by an

 10 independent party, with real teeth in it, you only

 11 have an illusion of quality control. That seems

 12 to be the fundamental flaw of Option D.

 13 Consequently, it is kind of a Hobson's choice, a

 14 very difficult decision the panel faces.

 15 It's too bad there is not a third option

 16 where perhaps the recycling uses could be given a

 17 healthy title. Go ahead and use them and go ahead

 18 and provide this crutch to allow what looks to me

 19 like a dying industry, because burning ancient

 20 sunlight obviously will come to an end one day.

 21 Any crutch that allows it to go too far

 22 into the future will work against converting to
 143

 1 safe alternatives that do not pollute. Thank you.

 2 MR. DELLINGER: 218.

 3 SPEAKER: Good morning. My name is

 4 Larry Ivy. I live near Fairfield, Texas. I've

 5 lived in the Fairfield area for the past 22 years

 6 and since my retirement in 1999, I have had the

 7 opportunity to have a little political stint as

 8 city councilman and mayor of Fairfield, but I've

 9 also had a small cattle operation on a 65-acre

 10 tract of land about 3 miles from the Big Brown

 11 Power Plant. I have two neighboring landowners

 12 who are physicians and live on their ranch near

 13 the power plant. Also, my only daughter and her

 14 only two children live on a ranch near Fairfield.

 15 So I have a particular interest in this

 16 goings-on, over a period of several years, as to

 17 exactly what was going on. None of us have ever

 18 seen any evidence that any person or environment

 19 has suffered any ill effect caused by the

 20 operation of the Big Brown Plant and Mine.

 21 I'll not try to address the technical

 22 determination of whether a substance, in this
 144

 1 case, coal combustion by-products, should be

 2 classified as a hazardous waste. But from what

 3 I've read, the EPA has studied this matter

 4 extensively over the past several years and has

 5 repeatedly determined that regulation of such

 6 products as a hazardous substance is not

 7 warranted. I've not seen any evidence that the

 8 chemical makeup of the by-products has changed

 9 through the years, and yet there are those who

 10 want to arbitrarily change the classification to

 11 that of a hazardous substance.

 12 I would like to address the impact that

 13 an unwarranted reversal in this determination

 14 could have on my community in Fairfield and on

 15 Freestone County. The Big Brown Plant and Mine

 16 are the primary industry and provider of jobs in

 17 our county. The added cost of a hazardous

 18 substance regulation could possibly force the

 19 plant and mine out of business along with the

 20 company that markets the ash for beneficial use,

 21 which would be devastating to our local economy.

 22 At the very least, it's apparent that the cost of
 145

 1 all electricity -- all electric energy, not just

 2 that produced by coal-burning plants, would

 3 increase unnecessarily.

 4 I ask you not to let a few isolated

 5 instances of improper handling or management

 6 result in regulations that punish those companies,

 7 communities, and states that are doing a good job

 8 of regulating, managing, and utilizing these

 9 by-products. It can be done properly and safely

 10 without the hazardous substance designation. I

 11 thank you.

 12 MR. DELLINGER: Who has the lower number

 13 over there now? Can you show me that? 220.

 14 SPEAKER: First of all, I would like to

 15 thank you for giving me the time to weigh in on

 16 this incredibly important issue. I feel very

 17 privileged as an ordinary Louisiana citizen to be

 18 able to take the time out of my week to travel to

 19 Dallas in order to exercise my civic duty.

 20 I do find it unfortunate --

 21 MR. DELLINGER: Can you state your name?

 22 SPEAKER: Oh, I'm sorry. My name is
 146

 1 Jordan Bantuelle, and I'm from Louisiana.

 2 MR. DELLINGER: Thank you.

 3 SPEAKER: I do find it unfortunate that

 4 the federal government does not have the time, the

 5 resources, and the manpower to travel to New

 6 Roads, Louisiana, to ask each and every resident

 7 how they feel about the fact that the toxic,

 8 sometimes lethal amount of selenium has been found

 9 to exceed federal standards in their drinking

 10 water due to coal ash ponds.

 11 It is unfortunate that we cannot all

 12 travel to Mansfield, Louisiana, and ask the

 13 residents how they feel about the fact that the

 14 coal ash storage contaminated four district

 15 groundwaters and groundwater monitoring has

 16 documented exceedances for lead and arsenic and

 17 selenium.

 18 It is too bad that the good people from

 19 (inaudible) Louisiana could not all make it up

 20 here today to let us know how they feel about the

 21 fact that their groundwater has been contaminated

 22 with arsenic, to almost six times the maximum
 147

 1 level, and lead exceeding the maximum contaminant

 2 level.

 3 All of these people could not make it

 4 here today. Perhaps they are at work. Perhaps

 5 they are working so that they can feed their

 6 families, as well as paying their medical bills.

 7 But I could make it here, so I hope it is not too

 8 presumptuous if I say a few words on behalf of the

 9 citizens of Louisiana.

 10 People that live within one mile of an

 11 unlined coal ash pond have a 1 in 50 chance of

 12 getting cancer. That is 2,000 times higher than

 13 the EPA's acceptable level, while the people of

 14 Louisiana don't like having an unacceptable chance

 15 of getting cancer.

 16 According to the EPA, living near a wet

 17 coal ash storage mine has health risks amounting

 18 to almost smoking as many as 20 packs of

 19 cigarettes a day. The people of Louisiana do not

 20 want to smoke 20 packs of cigarettes a day.

 21 The toxins found in coal ash have been

 22 linked to numerous health problems, but we don't
 148

 1 want organ disease or cancer. We don't want

 2 respiratory illness or neurological damage. And

 3 perhaps most of all, we don't want our children to

 4 grow up with developmental problems.

 5 When I was in grade school, I learned

 6 that the executive branch of our government

 7 enforces the laws and protects the citizens of

 8 America. Well, today, may democracy and common

 9 decency prevail over the power of profits. Please

 10 enact Subtitle C to regulate coal ash. Thank you

 11 very much.

 12 MR. DELLINGER: 221.

 13 SPEAKER: My name is Mike Griffith. I'm

 14 with the Port of Bay City in Matagorda County.

 15 As technology improves with lower air

 16 emissions, the waste ash becomes even more toxic.

 17 Federal regulation is needed. We constantly learn

 18 of new contamination of rivers, streams, and

 19 groundwater. I am personally familiar with the

 20 proposed new plant in Matagorda County, Texas. It

 21 will produce 3 million pounds of ash each year

 22 that's going to be stored offsite.
 149

 1 This location is within the 100-year

 2 floodplain, it's in a hurricane zone, and it's

 3 adjacent to the Colorado River. This river

 4 provides freshwater to the second-largest nursery

 5 bay on the Texas Gulf Coast. It's home to the

 6 largest shrimping fleet on the Texas Coast as

 7 well.

 8 There are not adequate rules or

 9 regulations to cover this waste ash disposal.

 10 This bay supports commercial shrimping, fishing,

 11 oystering, as well as recreational fishing. The

 12 fish bioaccumulate these toxins, and people eat

 13 the fish. Contamination will be devastating to

 14 the estuaries, commercial and recreational

 15 fisheries, and human health.

 16 The EPA needs to follow Subtitle C to

 17 protect the environment and the citizens. Thank

 18 you.

 19 MR. DELLINGER: Please state your name.

 20 SPEAKER: My name is Eddie Pevehouse.

 21 Sorry. I'm here today representing Citizens

 22 Opposed to Power Plants. And I live in southern
 150

 1 Navarro County on a ranch that has been in my

 2 family for 137 years. I operate that ranch. And

 3 I hope that we can keep our -- our water and --

 4 and air clean enough for my chil -- my sons and my

 5 grandchildren to live on and operate that ranch

 6 someday.

 7 The people of Navarro County have been

 8 increasingly approached by companies wanting to

 9 build both coal-fired and gas-fired power plants.

 10 We are already negatively affected by Big Brown

 11 and other large power plants to our south. Also,

 12 Navarro County is the home of Richland-Chambers

 13 Reservoir. It's a big fishing lake, but it also

 14 is the source of Tarrant County's water supply.

 15 And we cannot afford to have that water supply

 16 polluted and contaminated. Also, Richland Creek

 17 and Pin Oak Creek receive water from -- from that

 18 lake. And Pin Oak Creek runs across the back of

 19 my ranch.

 20 I guess what I want to urge the EPA to

 21 do is to -- no, I don't guess. I know. Sorry

 22 about that. I want to urge the EPA to regulate
 151

 1 the coal ash as special waste. And I believe that

 2 would fall under Provision C of -- of the Clean

 3 Air Act. Thank you very much.

 4 MR. DELLINGER: Thank you.

 5 SPEAKER: My name is Diana Rawlins. And

 6 I am here from Navarro County, Texas. People

 7 United for the Environment in Navarro County would

 8 urge the EPA to regulate coal ash as special

 9 waste. It is a hazardous substance and should be

 10 strictly regulated. Much of Texas depends on

 11 water from little of Texas.

 12 No issue is more relevant to the future

 13 of the state and its people and livestock than the

 14 preservation of non-polluted water sources. Coal

 15 ash management will have a major impact on water

 16 sources in Texas. The air issues in this area are

 17 well-known. The SIP, the State Implemented Clean

 18 Air Area, is directly impacted by pollution from

 19 the south because of our wind patterns. Yet TCEQ

 20 is permitting more and more power plants south of

 21 Dallas. Ellis County, south of Dallas, is already

 22 included in the non-attainment air area. Power
 152

 1 plants in Navarro would be located less than 30

 2 miles -- less than 30 miles from Ellis County.

 3 Affects of coal ash also affect air quality.

 4 Every attempt to use a strict standard of coal ash

 5 control should be used. We support the adoption

 6 of Subtitle C.

 7 And on my personal behalf, I will

 8 mention to you that there is a place across the

 9 ocean called Europe. And a long, long time ago, a

 10 lot of men called Romans went there. And they

 11 made a lot of structures including Hadrian's Wall.

 12 And they built these structures with concrete. A

 13 lot of those structures are still there, some of

 14 them are still usable. And you know, there isn't

 15 any fly ash in any of that concrete.

 16 MR. DELLINGER: Thank you. We're going

 17 to take a 10-minute break. And we'll continue at

 18 1:15.

 19 (Whereupon, at 1:05 p.m., a

 20 luncheon recess was taken.)

 21

 22
 153

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

 2 (1:17 p.m.)

 3 MR. BEHAN: Good afternoon. We're going

 4 to continue with the hearing.

 5 Good afternoon and thank you for

 6 attending today's public hearing on the

 7 Environmental Protection Agency's proposed rule

 8 regarding the regulation of coal combustion

 9 residuals that are disposed of in landfills and

 10 surface impoundments.

 11 My name is Frank Behan. And I'm the

 12 acting chief of the Energy Recovery and Waste

 13 Disposal Branch in the Office of Solid Waste and

 14 Emergency Response. I will be chairing this

 15 afternoon session of the public hearing. And with

 16 me on the panel are three other individuals from

 17 the Office of Solid Waste and Emergency Response.

 18 They are, starting to my immediate right, Elaine

 19 Eby, Jim Kohler, and Steve Souders.

 20 Before we begin the afternoon session, I

 21 would like to provide a brief description of how

 22 the logistics will go this afternoon in case those
 154

 1 that are arriving for the afternoon session missed

 2 the introduction this morning. Speakers, if you

 3 are pre-registered, you were given a 15-minute

 4 time slot when you are scheduled to give your

 5 three minutes of testimony. To guarantee that

 6 slot, we have asked that you sign in ten minutes

 7 before your 15-minute slot at the registration

 8 desk, which is just outside the doors. All

 9 speakers, those that have pre- registered and

 10 those that are walk-ins were given a number when

 11 you signed in today, and this is the order in

 12 which you will speak. I will call speakers to the

 13 front of the room, and I'll ask that they sit over

 14 in those chairs behind the podium. When your

 15 number is called, I'll ask that you move up to the

 16 speaker's podium and state your name and

 17 affiliation. And at that point, you can give your

 18 oral testimony.

 19 Because there are many people today that

 20 have signed up to provide testimony, and to be

 21 fair to everyone, testimony is limited to three

 22 minutes. We will be using an electronic
 155

 1 timekeeping system, which is located at the

 2 speaker's podium and controlled up from our panel

 3 area. And we will also hold up cards to let you

 4 know when time is getting low. When we hold up

 5 the first card, this means that you have two

 6 minutes left. The second card means that you have

 7 one minute left. The third card, you will have 30

 8 seconds left. When the fourth card is held up,

 9 your time is up and we ask that you wrap up your

 10 testimony. When -- when you have completed

 11 speaking, please return to your seat behind the

 12 podium against the wall and remain there until all

 13 speakers in your group have completed their

 14 testimony.

 15 If you have a copy of your written -- or

 16 of your oral testimony that you put on a piece of

 17 paper, please place that in the box by the court

 18 reporters. We will not be answering questions on

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

 20 us in the hearing panel may ask questions of you

 21 to clarify your testimony.

 22 So as -- so as I just mentioned, if you
 156

 1 have brought a written copy of your comments that

 2 you are giving today, please leave a copy in the

 3 box by the court reporter. If you are only

 4 submitting written comments today, please put

 5 those in a box by the registration desk. If you

 6 have additional comments after today, please

 7 follow the instructions on the yellow handout and

 8 submit comments by November 19th, 2010.

 9 Our goal is to ensure that everyone who

 10 has come today to present testimony is given an

 11 opportunity to provide comment. To the extent

 12 allowable by time constraints, we do -- we will do

 13 our best to accommodate speakers who have not

 14 pre-registered. Today's hearing is scheduled to

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

 16 necessary.

 17 If, however, time does not allow you to

 18 present your comments orally, we have prepared a

 19 table in the lobby where you can provide a written

 20 statement in lieu of oral testimony. These

 21 written statements will be collected and entered

 22 into the docket for the proposed rule, and will be
 157

 1 considered the same as if you presented them

 2 orally.

 3 If you would like to testify but not yet

 4 -- but have not registered to do so, please sign

 5 up at the registration table. We are likely to

 6 take a few occasional breaks, but we are prepared

 7 to eliminate or shorten the breaks in order to

 8 allow as many people as possible to provide their

 9 testimony.

 10 Finally, if you have a cell phone, we

 11 would appreciate it if you would turn it off or

 12 turn it onto vibrate. If you need to use your

 13 phone at any time during the hearing, please move

 14 to the lobby or somewhere outside the hearing

 15 room. We ask for your patience as we proceed. We

 16 may need to make some minor adjustments this

 17 afternoon. And we thank you for participating

 18 today.

 19 And at this time, we're going to go

 20 ahead and continue with the -- the oral testimony.

 21 And I'd like to call Numbers 43, 46, 47, and 48 up

 22 to the chairs to my right. And Number 49, also.
 158

 1 Number 43.

 2 SPEAKER: Good afternoon. My name is

 3 Rick Wicker. I'm with the -- I'm from Oklahoma

 4 City, Oklahoma. Today, I'd like to speak in favor

 5 of Subtitle C, making coal ash a hazardous

 6 material.

 7 I first became aware of this issue in

 8 April when I took a trip to Bokoshe, Oklahoma,

 9 which is located about a mile and a half from a

 10 coal -- coal fly ash pit. It is run by a company

 11 called Making Money Having Fun.

 12 I think the issue here is social justice

 13 because most of the coal fly ash pits are located

 14 in rural America and very small towns. This

 15 particular coal ash pit is a mile and a half south

 16 of the town of Bokoshe in the direction of the

 17 prevailing winds. So whenever a truck goes

 18 through town and then dumps at the pit, the plume

 19 of ash goes up into the air and is carried north

 20 toward the town.

 21 There are -- according to some of the

 22 locals, which we talked to, approximately 12 of 15
 159

 1 families located within a mile of the pit are

 2 suffering from different forms of cancer. The pit

 3 has been there for eight years. The pit is a

 4 reclamation project. They used to mine coal from

 5 that area and -- but now the pit is no longer a

 6 pit. It's a -- it's a mountain of -- 50 feet high

 7 of solidified coal ash.

 8 Below the pit is a pond that has an

 9 electric blue color, which if you're from

 10 Oklahoma, you know that we don't have any electric

 11 blue ponds up there. So from that pit, there's

 12 also two -- two streams that flow out of that area

 13 that go downstream. One of the farmers downstream

 14 has reported that a lot of his cows were

 15 stillborn, that drink water from one of those

 16 streams.

 17 The issue here is that the pit is not

 18 lined. It's -- it's exposed to the groundwater.

 19 The surface water downstream of the pit is -- is

 20 more likely contaminated. But there is no state

 21 agency that's involved in monitoring or looking

 22 into the groundwater, the surface water, or the
 160

 1 air. And my main point is that the states are not

 2 going to take care of this problem until it's

 3 declared a hazardous material. And so that's the

 4 way it is. Thank you. Thank you very much.

 5 MR. BEHAN: Thank you, sir. Number 46.

 6 SPEAKER: Good afternoon. I'm Gerald

 7 Butcher. I'm with Western Farmers Electric

 8 Cooperative. Western Farmers serves rural

 9 Oklahoma, and we've done that for over 69 years.

 10 As a non-profit wholesale power supplier of

 11 electricity, Western Farmers provides power to

 12 nineteen member co-ops who distribute that to

 13 two-thirds the state of Oklahoma. This powers

 14 small towns, communities and farms, and people in

 15 rural areas of Oklahoma.

 16 There's an old painting hanging in

 17 Western Farmers headquarters that shows the joy on

 18 the faces of a rural family when they first

 19 receive electricity in their rural farmhouse. And

 20 the caption comes from an old Tennessee farmer,

 21 who said in the '40's, "Brothers and sisters, I

 22 want to tell you this, The greatest thing on earth
 161

 1 is to have God in your heart. And the next

 2 greatest thing is to have electricity in your

 3 house." This painting is more than a sentiment.

 4 It depicts the impact of electricity on those

 5 people in rural areas that rely on cheap

 6 electricity.

 7 During the 1930's and '40's, parts of

 8 rural Oklahoma did not have electricity in rural

 9 areas. That changed when rural electric

 10 cooperatives were formed. It was an unbelievable

 11 blessing to rural areas in small towns and

 12 communities who now had power. It opened a world

 13 to them by providing power for radios, telephones,

 14 and new farming techniques.

 15 As a third generation of Oklahoma, I can

 16 clearly recall my elderly family telling stories

 17 of the challenges of rural life during the Great

 18 Depression and how that finally changed when

 19 electric power was supplied to them. In short,

 20 the cheap power my grandfather and others received

 21 made them a real part of the world.

 22 Today, Western Farmers is able to
 162

 1 provide low cost electric power in parts -- in

 2 part due to a coal-fired power plant, one unit --

 3 it's a 450 megawatt unit at Fort Towson, Oklahoma.

 4 It generates approximately 90,000 tons of CCR

 5 annually. Over 70 percent of this is reused for

 6 road beds, concrete, dry wall, and other everyday

 7 products. The remaining CCR is disposed on site,

 8 which is monitored by a groundwater monitoring

 9 system. No leaching or environmental incidents

 10 have ever occurred in 30 years of this plant's

 11 operation.

 12 If the EPA decides to regulate CCR more

 13 stringently, there will be several consequences.

 14 First, the cost of compliance will increase.

 15 Second, Western Farmers sells CCR to other

 16 companies who put it to beneficial use. With the

 17 stigma attached to hazardous waste label, this is

 18 going to change and prohibit reuse. And finally,

 19 co-op systems are relatively small and are

 20 prohibited from maintaining large capital

 21 reserves. When the costs for running their

 22 businesses suddenly increase, like they would if
 163

 1 CCR is more stringently regulated, there's little

 2 or no cushion to mitigate the increased costs, so

 3 rates or borrowing money as -- as necessary for

 4 these cooperatives.

 5 In conclusion, Western Farmers

 6 respectfully requests that EPA maintain the Bevill

 7 amendment and regulate the disposal of CCR under

 8 Subtitle D. Thank you.

 9 MR. BEHAN: Thank you. Number 47.

 10 SPEAKER: Good afternoon. Welcome to

 11 Dallas. Thank you for being here and thank you

 12 for providing this opportunity for us to provide

 13 comments into the docket. My name is Usha Turner.

 14 I'm the director of environmental policy and

 15 reporting for Luminant, headquartered here in

 16 Dallas. Luminant generates electricity in Texas

 17 with over 18,300 megawatts of electric generation,

 18 including over 8,000 megawatts of base load

 19 coal-fueled electric generation, using native

 20 Texas lignite and western sub-bituminous coal.

 21 This makes Luminant one of the nation's largest

 22 coal based generators. Luminant's commitment to
 164

 1 environmental excellence in Texas is

 2 well-demonstrated. And with strong encouragement

 3 from EPA and others, Luminant has invested

 4 significant efforts in recycling nearly 40 billion

 5 pounds of coal combustion residues, or CCRs, to

 6 date, with 2.2 billion pounds in 2009 alone.

 7 This has allowed other industries to

 8 beneficially reuse the CCRs, such as the

 9 construction industry's use in concrete for

 10 roadways, among many other applications that

 11 you've heard here today. As you've also heard

 12 here today and as you know, on four separate

 13 occasions, most recently in the year 2000, EPA

 14 made a regulatory determination that concluded

 15 that Subtitle C of RCRA is not the appropriate

 16 regulatory regime for regulating CCRs. And that

 17 regulation as non-hazardous waste by the states is

 18 the appropriate option for ensuring the safe

 19 management of these materials while preserving

 20 reuse.

 21 The state of Texas, through the Texas

 22 Commission on Environmental Quality, already has a
 165

 1 comprehensive regulatory program for the storage,

 2 the disposal of CCRs, that oversees the design,

 3 construction, monitoring, reporting, and final

 4 closure of all CCR disposal facilities.

 5 The regulation of CCRs under Subtitle C

 6 would not only strip states of the ability to cost

 7 effectively regulate CCR disposal practices and

 8 potentially cost utilities like Luminant hundreds

 9 of millions of dollars, but would also eliminate

 10 the use of CCRs and the businesses that utilize

 11 them, again, as you've heard here today several

 12 times.

 13 Any hazardous waste-like program that

 14 directly -- excuse me. Any hazardous waste-like

 15 program would directly or indirectly result in the

 16 elimination of the recycling markets for CCRs,

 17 increase the use of virgin natural resources,

 18 contribute to negative environmental benefits, job

 19 losses, and increase in electricity cost and

 20 energy use.

 21 In summary, Luminant, in addition to

 22 over 200 members of the U.S. Congress, 43 states,
 166

 1 and numerous federal agencies strongly oppose the

 2 regulation of CCRs as a hazardous material, and

 3 recommends that EPA continue to allow states to

 4 run their own programs like the model state of

 5 Texas that you've heard about here today. Thank

 6 you for this.

 7 MR. BEHAN: Thank you. Number 48.

 8 SPEAKER: Good afternoon. My name is

 9 Paul Rolke. I own a 2,300-acre ranch about

 10 halfway between Dallas and Houston. I'm also the

 11 president of Robertson County: Our Land, Our

 12 Lives, a group of concerned citizens which tried

 13 to get the TCEQ to reduce the pollution from the

 14 proposed and now constructed Oak Grove lignite

 15 burning power plant, which our previous speaker

 16 works for that company.

 17 It is clear that the disposition of coal

 18 ash needs additional regulation. The science

 19 speaks for itself. The question is, are

 20 enforceable federal rules necessary, or will

 21 federal guidelines be sufficient to protect Texans

 22 from harmful pollution? I believe my experience
 167

 1 with the coal plants in my county provides

 2 guidance as to whether the State of Texas and the

 3 TCEQ will do their job without enforceable federal

 4 standards.

 5 Our experience with the Oak Grove plant

 6 permitting process, upon review of the PSD permit

 7 for Oak Grove, EPA Region 5 sent letters to the T

 8 -- TCEQ expressing concerns about specific aspects

 9 of the permit. The TCEQ took no action respecting

 10 these concerns. Likewise, regarding an amendment

 11 to the water permit, TCEQ was nonresponsive to EPA

 12 concerns and even refused to hold off on approving

 13 the permit to allow the EPA to submit further

 14 information. The TCEQ appears to be in the habit

 15 of simply ignoring the feedback from the EPA when

 16 we have a circumstance that at least with the PSD,

 17 the tech -- the EPA is allowing TCEQ to administer

 18 the regulations that are EPA's.

 19 At a broader level, new regulations

 20 continually lag behind the science. There's a

 21 cycle in which the science reflects a need for

 22 more stringent regulations to adequately protect
 168

 1 the public. The EPA goes through the rule-making

 2 process for a couple of years, a compromise is

 3 made, and the rules are enacted. Then sooner or

 4 later, better scientific research again shows the

 5 need for stricter regulation. And the cycle

 6 repeats.

 7 The scientists who did the research

 8 often find the final regulations less stringent

 9 than what the science demands. So in a

 10 circumstance where many feel the EPA regulations

 11 fall short of what is needed out of the myriad of

 12 federal regulations, is there one example that the

 13 TCEQ deciding on their own initiative that federal

 14 regulations are not stringent enough to protect

 15 the citizens of this great state and taking action

 16 on their own initiative to implement a more

 17 protective rule. There may be. I can't find one.

 18 I believe that if you consult with your

 19 co-workers in Region 5 (sic?), they will tell you that we

 20 can barely make them enforce the existing

 21 enforceable rules. Guidelines will not lead to

 22 acceptable regulation. I would also ask them, if
 169

 1 I were you, do they think the TCEQ is

 2 constitutionally capable of creating and strictly

 3 enforcing rules to protect the public and

 4 environment.

 5 My experience with the, quote,

 6 beneficial use of coal ash in my county -- a

 7 little less than ten years ago, the county added

 8 truckloads of coal ash to the dirt road that leads

 9 to my ranch. All of the silica works great as a

 10 stabilizer when it rains. On the other hand, I

 11 have no way of knowing what the health risks are.

 12 I can speculate. I know that a coal boiler cooks

 13 elements down to a particulate size that in the

 14 natural world, only a volcano will do at that

 15 scale. And I know that those tiny particles are

 16 far less likely to be captured by my internal

 17 filtration system than the dust I would normally

 18 inhale.

 19 The net -- net is -- the --

 20 notwithstanding what you just heard, as far as I

 21 can tell, this position of coal ash waste is not

 22 regulated in the state. Fly ash is regulated in
 170

 1 the air permits. But the ash itself, they can

 2 pretty much do whatever they want to with it.

 3 Thank you very much. Sorry to run long.

 4 MR. BEHAN: Thank you. Number 49. Is

 5 Number 49 here?

 6 SPEAKER: Hi, good afternoon. My name

 7 is Jody Harlan. I'm from Yukon, Oklahoma. I'm

 8 the communications director at a state agency that

 9 serves people with disabilities. And I took off

 10 work today to talk with you about this important

 11 issue.

 12 I would like for the EPA to recognize

 13 the public health and environmental hazards caused

 14 by coal ash and the impact on the communities in

 15 Oklahoma. And ask you to regulate it under

 16 federal guidelines Subtitle C of the RCRA. This

 17 is the only option that establishes federally

 18 enforceable standards needed for oversight and

 19 protection of the citizens and -- and the water.

 20 In Oklahoma, state regulation and

 21 enforcement are notoriously weak or nonexistent.

 22 The Oklahoma Department of Environmental Quality,
 171

 1 the Water Resources Board, and the Oklahoma

 2 Department of Mines each insist that the other is

 3 responsible for regulation. And to regulate under

 4 Subtitle C would be following EPA's own

 5 guidelines.

 6 A 2008 EPA report found that coal ash

 7 contains significant carcinogens and retains heavy

 8 metals in far higher concentrations than those

 9 found in coal. An EPA risk assessment said -- as

 10 I think you've heard here already today -- that

 11 living near a coal ash site is more dangerous than

 12 smoking a pack of cigarettes each day. Coal ash

 13 has been linked to organ disease, respiratory

 14 illness, neurological damage, and developmental

 15 disabilities.

 16 And we're here today -- at least one of

 17 the reasons the federal regulation process

 18 started, from what I understand, because of the 1

 19 billion gallons of sludge that spilled onto

 20 adjacent properties in Kingston, Tennessee at

 21 Christmas in December 2008. So what I want to ask

 22 is that you consider the Subtitle C provisions.
 172

 1 And my research of this really big bill

 2 under Subtitle C: Coal ash sites would get

 3 mandatory permits and take basic safety

 4 precautions. Wet coal ash ponds would be phased

 5 out. Companies operating coal ash sites when the

 6 rules go into effect would have to assume

 7 liability for the damage that they do -- the harm

 8 that their facilities cause in our communities in

 9 Oklahoma. And existing dams would be subject to

 10 increased inspection by certified engineers.

 11 Finally, coal dumped into the fill sites, like the

 12 one in Bokoshe, would be regulated as landfills,

 13 not allowed to masquerade as recycling.

 14 So thank you for being in Texas today.

 15 This is the first time I've ever done anything

 16 like this. I'm sure that's true of others. Thank

 17 you very much for listening.

 18 MR. BEHAN: Thank you. Numbers 50, 51,

 19 52, 53, 54, if you could come up and take a seat

 20 in the chairs. 121 and 204, if you could come up.

 21 Number 50.

 22 SPEAKER: Good afternoon. My name is
 173

 1 Lonnie Johnston, and I'm a concerned citizen. I

 2 live in Bossier City, Louisiana. I've been in the

 3 construction industry for 28 years and have

 4 extensive experience with coal combustion

 5 products, or as we call them, fly ash. I worked

 6 for one of the largest concrete companies for 22

 7 years. I assisted in the installation and testing

 8 of the first fly ash silo in our area. I was part

 9 of the approval process in our district for the

 10 Louisiana Department of Transportation, along with

 11 the introduction of its beneficial use to our

 12 commercial and residential customers.

 13 I have extensive experience in the use

 14 of fly ash in concrete, and have been personally

 15 involved in creating mixed designs for beneficial

 16 use. As a manager in the concrete industry, I was

 17 also involved with the day-to-day policy and

 18 procedures and compliance with all safety and

 19 health hazards. While dealing with many issues

 20 over 22 years, I cannot recall having one safety

 21 or health issue related to fly ash during

 22 beneficial use.
 174

 1 In 2004, I went to work for one of the

 2 largest marketers of fly ash in the country as a

 3 technical sales representative. It was a perfect

 4 fit for me since I knew the material and its many

 5 uses. Knowing most of the concrete producers in

 6 the state of Louisiana and their uses was also a

 7 plus. For the last six years, I have dealt

 8 directly with all the users of fly ash in the

 9 state of Louisiana and their many different

 10 beneficial uses of ash and do not recall a single

 11 safety or health issue, which brings me to my

 12 point.

 13 As you can see, I've experience and

 14 knowledge of the beneficial use of ash. Also, I

 15 have firsthand experience in how companies will

 16 react to the reclassification of fly ash as a

 17 Subtitle C hazardous material. Your intentions

 18 may be to regulate CCPs at the landfill area,

 19 when, in fact, you will be impacting the

 20 beneficial use of the recycled and reusable

 21 product. I have many concrete producers in this

 22 state that will -- that have stated that in the
 175

 1 event the EPA classifies fly ash as a Subtitle C

 2 hazardous material, they will discontinue the use

 3 of fly ash in their concrete plants.

 4 Your actions will decide whether we will

 5 continue using fly ash beneficially or whether we

 6 will double the landfills at our power plants and

 7 increase our cost of electricity, effectively

 8 bringing the use of one of the most beneficial

 9 recycled products to an end. I strongly urge you

 10 to classify coal combustion products under

 11 Subtitle D, so we can continue to use them

 12 beneficially.

 13 MR. BEHAN: Thank you. Was 51 here?

 14 52?

 15 SPEAKER: In 1990, the Texas Coal Ash

 16 Utilization Group was formed by marketers,

 17 academia, and local Texas utilities to promote the

 18 beneficial reuse of coal combustion products.

 19 Through our outreach with the TCEQ, a guidance

 20 letter was issued in 1995 that it recognized CCPs

 21 as the materials and not considered a solid waste.

 22 This letter was instituted as an agency rule in
 176

 1 '01 and has been a key to the overwhelming success

 2 of CCP utilization year after year.

 3 Prior to this rule, the use of CCPs in

 4 Texas was 20 to 30 percent of annual production.

 5 This low utilization rate was contributed to the

 6 reporting guidelines that were in place. But more

 7 importantly, there was a stigma in the market

 8 because CCPs were treated as a solid waste and not

 9 a product. The current EPA Option 1 proposal for

 10 managing CCPs under the RCRA C program would set

 11 our industry back in Texas as it was prior to the

 12 TCEQ recognizing CCPs as a product and not a solid

 13 waste. Since the new guidelines have been in

 14 place by the TCEQ, Texas has recycled more CCPs

 15 than any other state. And now the utilization is

 16 60 to 70 percent of utilization -- of production

 17 annually.

 18 From prior public statements, EPA

 19 clearly does not believe that a stigma exists or

 20 potentially would come into play if the RCRA C

 21 proposed option becomes regulation. However, in

 22 '05, the EPA has a report, Review of Texas
 177

 1 Regulation, Standards, and Practices to the Use of

 2 CCPs, states this stigma effect has a potential

 3 threat that could impact future CCP utilization in

 4 Texas.

 5 In regards to liability, utilities are

 6 highly considering not allowing CCPs to leave the

 7 site for fear of future litigation. The same

 8 concern is being reserved -- observed from end

 9 users, as well. The potential of future

 10 litigation is too much at risk for some CCP -- CCP

 11 producers and utilizations.

 12 Technical and cost savings. Specific to

 13 Texas, the aggregates that are used for the

 14 production of concrete are highly reactive. ASR

 15 is a material related distress that has resulted

 16 in premature deterioration of concrete. Texas DOT

 17 highly relies on the use of fly ash for the

 18 mitigation of ASR. If the Texas -- if TxDOT does

 19 not have these materials at hand, they will have

 20 an increase of 12.7 million tons annually a year.

 21 In regards to the economic assessment,

 22 last, in EPA's economic assessment, EPA determined
 178

 1 that CCP utilization would actually increase under

 2 the RCRA C proposal option. The assessment by EPA

 3 assumes utilities will be motivated to have CCP

 4 utilized rather than go to their onsite landfills

 5 due to increased cost. This thought by EPA

 6 assumes that there is no cap on the amount of tons

 7 that can be utilized, especially in concrete. EPA

 8 did not consider the fact that there are technical

 9 limitations to the utilization of CCPs.

 10 TxDOT has limitations at 35 percent

 11 maximum replacement, for example. This is a

 12 significant oversight by EPA in their assessment

 13 and needs to be reconsidered. The fact is, there

 14 is a cap on what can be utilized; and that is

 15 dependent on the annual concrete market and a

 16 percentage replacement limitations.

 17 I encourage the EPA to assess this item

 18 -- of increased utilization that has been publicly

 19 stated. In summary, TCAUG strongly supports and

 20 encourages the EPA to elect the RCRA D proposal

 21 option to manage CC -- CCPs per our comments

 22 addressed to the EPA panel this afternoon. Thank
 179

 1 you.

 2 MR. BEHAN: Thank you. Sir, could you

 3 state your name for the record?

 4 SPEAKER: My name is Mike Silvertooth.

 5 I'm president of TCAUG.

 6 MR. BEHAN: Great. Thank you, sir.

 7 Number 53.

 8 SPEAKER: Good afternoon. My name is

 9 Ryan Rittenhouse. I work with Public Citizen

 10 Texas, based out of Austin. We are a national

 11 consumer interest organization. Thank you for

 12 giving us this opportunity to speak today.

 13 You're the EPA. You're the

 14 Environmental Protection Agency. Your job is to

 15 protect public health and the environment. Your

 16 job is not to ensure that coal companies can not

 17 irresponsibly increase their profits at the

 18 expense of public health and the environment. So

 19 we are calling on you to adopt the most stringent

 20 regulation possible, which is in this instance

 21 Subtitle C.

 22 I would also go further to say that
 180

 1 Subtitle C isn't good enough. That's the bare

 2 minimum of what should be done right now. For

 3 instance, as -- it's not looking at coal ash waste

 4 as being deposited back into mine-mouth areas.

 5 And many of the sites in Texas -- not all of them,

 6 but a lot of them -- are these mine-mouth

 7 reclamation sites where they're dumping the coal

 8 ash right back -- excuse me -- into the mine once

 9 they're done with it. This is also lignite coal,

 10 which is the dirtiest coal, and has some of the

 11 worst and highest levels of these contaminants.

 12 So this is a really big problem right here in

 13 Texas.

 14 And even Subtitle C won't address all of

 15 the -- these issues. So we need more than just

 16 Subtitle C. And Subtitle C should definitely be

 17 what you adopt now. And you should be looking

 18 towards the future to take into account all these

 19 other ones, as well.

 20 Now, we have a lot of coal plants in

 21 Texas. You've probably seen this report already.

 22 I'll leave this with you as well, though. This is
 181

 1 the report that EIP just put out, In a Harm's Way,

 2 Lack of Federal Coal Ash Regulations Endangers

 3 Americans and Their Environment. In this report,

 4 it -- they studied coal plants all around the

 5 country and saw that almost all of them, if not

 6 all of them, showed elevated levels of many of the

 7 toxic carcinogens and other contaminates that are

 8 in coal waste, leaching into the groundwater and

 9 leaching into the nearby areas.

 10 The only one they had data for on Texas

 11 was the Fayette coal plant, and that was only

 12 because Fayette -- because of a settlement had had

 13 to do special monitoring. And that was the only

 14 reason TCEQ had that data. They didn't have data

 15 for EIP, for the other 18 coal plants in Texas.

 16 There is nothing going on. We don't know what's

 17 out there. And we don't know what danger we're

 18 facing. And it's one more example -- as I'm sure

 19 you've heard in a long list of examples -- of how

 20 TCEQ has been utterly failing the people of Texas.

 21 We need EPA to come in, and we need them

 22 to set federally enforceable regulations that all
 182

 1 of these facilities will have to comply with. If

 2 not, it's just business as usual, and you may as

 3 well not do anything. Adopting Subtitle D will do

 4 little, if anything, to improve this problem. So

 5 with that, I highly encourage you to adopt

 6 Subtitle C. I would further encourage you to

 7 adopt something stricter if possible. And thank

 8 you for your time.

 9 MR. BEHAN: Thank you. Number 54.

 10 SPEAKER: My name is Thomas Adams. I'm

 11 the executive director of the American Coal Ash

 12 Association. I want to thank you for the

 13 opportunity to participate here today.

 14 In the EPA proposal of June 22nd, the

 15 agency raises concerns over the use of flue gas

 16 desulfurization gypsum, also known as FGD gypsum,

 17 for agricultural applications. FGD gypsum is not

 18 an ash. Rather, the material is a synthetic form

 19 of gypsum that is produced by scrubbers that are

 20 installed on coal-fired plants to control SOX and

 21 NOX air emissions. This form of gypsum is

 22 slightly more pure than mined gypsum.
 183

 1 Research by the U.S. Department of

 2 Agriculture in numerous academic institutions has

 3 shown that FGD gypsum is safe and beneficial for

 4 use on farms which grow our food. The USDA is in

 5 the middle of an extensive risk assessment

 6 scheduled for completion in 2012. None of the

 7 research to date has given the USDA, academic

 8 institutions of the agricultural community cause

 9 for concern.

 10 The EPA itself has been a supporter of

 11 the use of FGD gypsum up to now. As recently as

 12 November of 2009, the EPA has supported workshops

 13 to help promote the use of FGD gypsum by farmers.

 14 Farmers have found this material to be a valuable

 15 resource in chall -- in the challenges of no-till

 16 farming, soil erosion, and -- and water runoff,

 17 and enhancing crop growth and maturity.

 18 However, the June 21 proposal cast doubt

 19 on the future of the use of FGD gypsum on our

 20 farms due to concern over, quote, excessive

 21 quantities; that is, field applications of FGD

 22 gypsum in amounts that exceeds scientifically
 184

 1 supported quantities required for enhancing soil

 2 properties and/or crop yields, end quote. The

 3 source of this concern is somewhat curious. What

 4 farmer is going to apply excessive amounts of any

 5 material that would poison the soil and crops that

 6 provide his livelihood. Such action would be akin

 7 to committing financial suicide.

 8 Reports from those who market FGD gypsum

 9 indicate the stigma of any kind of hazardous waste

 10 regulation for disposal of CCRs under Subtitle C

 11 would result in a rapid declivity in the use of

 12 FGD gypsum. Farmers are careful to use materials

 13 that are effective economically and most

 14 importantly safe. Markets purchasing the crops

 15 must be satisfied that those crops are not tainted

 16 in any way. Continued use of a product that may

 17 be considered a hazardous waste under certain

 18 circumstances is totally unacceptable to farmers.

 19 In addition, there's a great concern

 20 among those currently using FGD gypsum, that their

 21 property may become tainted by a hazard waste --

 22 hazardous waste stigma, which may render that
 185

 1 acreage of little or no value in resale. Farmers

 2 will not take time or make the effort to peel back

 3 the intentions or EPA exceptions of the new

 4 regulations. Hazardous means hazardous. And the

 5 stigma is real.

 6 The EPA has made a commitment to work

 7 with the Office of Surface Mines on the use of

 8 CCRs for mine fill applications. We applaud and

 9 encourage this effort. And we urge the EPA to

 10 take a similar approach with the use of FGD

 11 gypsum, and set aside this beneficial use for a

 12 joint effort with the U.S. Department of

 13 Agriculture. USDA has the science. We urge you

 14 to turn to the experts in your sister agency and

 15 use their work in consideration of the beneficial

 16 use of FGD gypsum on the farms of America.

 17 However, first and foremost, you must avoid a

 18 Subtitle C regulation of any kind to keep the

 19 stain of a hazardous waste rule off of the food we

 20 eat. Thank you.

 21 MR. BEHAN: Thank you. Number 204.

 22 SPEAKER: My name is Bill Saunders. And
 186

 1 I'm a Sierra Club volunteer from Little Rock. The

 2 coal ash that we're talking about is a huge

 3 problem. To give us an idea of its magnitude,

 4 three days ago in a New York Times editorial, they

 5 said, quote, America's power plants produce 130

 6 million tons of this stuff each year. That's

 7 enough to fill a train of boxcars stretching from

 8 Washington, D.C. to Australia.

 9 There are a lot of myths and

 10 misinformation put out by the special interest

 11 about coal ash. A primary one is that it's just

 12 about like dirt. Well, that's not the case at

 13 all. With the latest techniques of EPA testing,

 14 they have found commonly in the monitoring that's

 15 been done that arsenic can run up to 1,800 times

 16 the federal drinking water standard, and that

 17 selenium can be 580 times the standard, and that

 18 household garbage is regulated more than the patch

 19 work of the states on coal ash.

 20 Other points about this myth is that

 21 coal ash toxins can now leach into water at levels

 22 that were -- that are much higher than originally
 187

 1 understood. The levels of arsenic can be 1,000

 2 times higher than what is safe for drinking water.

 3 The -- an EPA conducted study shows that living

 4 near a wet coal ash storage pond is more dangerous

 5 than smoking a pack of cigarettes each day.

 6 Finally, there's a myth that the

 7 proposed regulations by the EPA would kill the

 8 industry. Well, this is the same scare tactic

 9 that we so often hear without substance that has

 10 been disproven many times. For examples, the EPA

 11 now has regulations for electric arc furnace dust.

 12 And we need the federal regulations to protect the

 13 people. Thank you.

 14 MR. BEHAN: Thank you. Numbers 55, 56,

 15 57, and 59.

 16 SPEAKER: Good afternoon. My name is

 17 Kyle Crake. I'm the president of PMI Ash

 18 Technologies. PMI Ash is a small business with 21

 19 employees. It's a clean technology company that

 20 focuses on fly ash beneficiation processes. We

 21 have developed three different ash recycling

 22 technologies.
 188

 1 Our technologies currently have a

 2 capacity to produce 1 million tons of marketable

 3 fly ash per year for use as a replacement for

 4 portland cement in concrete. PMI has been awarded

 5 greenhouse gas emission credits through the

 6 Massachusetts Greenhouse Gas Initiative. We have

 7 won technical and environmental recognition from

 8 the EPA Southeastern Electric Exchange, the DOE,

 9 Commonwealth of Virginia, and the State of North

 10 Carolina.

 11 PMI Ash supports EPA's management of

 12 CCRs under RCRA's Subtitle D non-hazardous waste

 13 program. This would provide uniform rules and

 14 higher standards for the utility and CCR

 15 industries. Implementation of the Subtitle D

 16 option will protect human health and the

 17 environment with the same standards and without

 18 the negative impacts caused by Subtitle C.

 19 The only issue is whether the standards

 20 can be enforced uniformly. Rather than a three-

 21 to four-year implementation as proposed by EPA's

 22 Subtitle D option, we suggest that they be able to
 189

 1 be enforced more quickly via a legislative

 2 solution that would give the EPA full authority to

 3 regulate CCRs similar to municipal solid waste.

 4 PMI Ash supports strong standards via

 5 Subtitle D of RCRA by enacting federal enforcement

 6 authority such as recommended by the congressional

 7 Research Service entitled "Regulating Coal

 8 Combustion Waste Disposal: Issues for Congress."

 9 PMI Ash is firmly against the

 10 classification of CCRs as special waste under

 11 RCRA's Subtitle C hazardous waste program. EPA

 12 has overreached with its Subtitle C proposal.

 13 EPA's approach will cost this country jobs, all

 14 for the purposes of obtaining enforcement

 15 authority. There are better ways that exist to

 16 obtain enforcement authority which allow U.S. jobs

 17 to grow.

 18 The CCR recycling industry has noted to

 19 the EPA that the Subtitle C classification will

 20 produce a stigma that will negatively impact the

 21 nation's best recycling story. The industry has

 22 supplied specific advertisements, bidding
 190

 1 packages, delayed or deferred projects showing

 2 that the stigma does exist. EPA continues to ask

 3 for evidence, while all the same ignoring the

 4 evidence given.

 5 PMI has seen the impact of the stigma.

 6 PMI has actively pursued several potential

 7 beneficiation projects. We have heard from

 8 prospective customers that they will not consider

 9 a project until a final rule is out and it is

 10 non-hazardous, due to the potential tort liability

 11 that could be associated with the sale of fly ash

 12 under Subtitle C. We have also been talking with

 13 companies about raising capital for projects.

 14 While the companies like our CCP recycling

 15 business, they are not willing to invest with the

 16 exposure to a Subtitle C classification.

 17 EPA's own scenarios that incorporate

 18 health, environmental, and commercial factors show

 19 that the downside in both recycled volume and

 20 economic value is significantly greater than the

 21 upside. The upside scenario is an 11 percent gain

 22 in sales for $84 billion in value. The stigma
 191

 1 scenario is an 18 percent loss in sales for a $233

 2 billion decrease in economic value.

 3 In conclusion, the cost of Subtitle C

 4 implementation, plus the associated loss of

 5 recycling, is too great a tradeoff for EPA

 6 enforcement authority, especially when it can be

 7 obtained on a legislative basis. Thank you.

 8 MR. BEHAN: 56, 57. This is 57.

 9 SPEAKER: My name is Jordan Macha. I am

 10 a Louisiana resident and a representative of the

 11 Sierra Club.

 12 For the past four months, Louisiana has

 13 faced an environmental disaster of enormous

 14 magnitude in the Gulf. One of the primary reasons

 15 for the disaster was the lack of strong federal

 16 regulation and oversight of the oil and gas

 17 industry. Like the TVA coal ash spill in December

 18 of 2008, our communities and residents are paying

 19 a price for a man-made disaster that is greatly

 20 affecting the livelihood of our citizens.

 21 We need the EPA to step up and federally

 22 regulate coal ash. Louisiana has been a fossil
 192

 1 fuel dumping ground for our nation for far too

 2 long. Our state agencies have not done the

 3 appropriate job at managing industries, and the

 4 administration must take action.

 5 I ask that the EPA adopt Subtitle C and

 6 hold the industry accountable for costs incurred

 7 to public health. In Louisiana alone, we have 11

 8 coal ash landfills that are polluting surrounding

 9 water sources, including two major river sources

 10 for the state. Please don't put profits over the

 11 health and welfare of our communities.

 12 It has been argued today that coal ash

 13 is safe and can be recycled into products that are

 14 publicly used. Several decades ago, asbestos was

 15 considered safe and was utilized in public

 16 projects. Now those communities are facing the

 17 consequences when their only crime is living in

 18 their community.

 19 We don't yet know the long-term effects

 20 of these actions. Please don't put our citizens

 21 at risk without knowing the real facts of the

 22 industry's actions. Thank you.
 193

 1 MR. BEHAN: 79.

 2 SPEAKER: Good afternoon. I'm Rogers

 3 Dennis, a retired electrical engineer, from

 4 Abilene, Texas. I'm a member of the Sierra Club,

 5 the Multi-County Coalition Environment Group, and

 6 Abilenians Against Tenaska. I appreciate the

 7 opportunity to speak with you for the regulation

 8 of coal ash disposal and storage.

 9 We know about by-products from coal

 10 combustion such as arsenic, lead, boron, selenium,

 11 mercury, cadmium, thallium, and many other

 12 pollutants at levels that put humans and animals

 13 at risk. Coal ash dumped in unlined or clay-lined

 14 ponds and landfills pose the greatest danger.

 15 When coal ash is deposited in landfills or

 16 impoundment structures, coal ash can be leached

 17 into the groundwater.

 18 In West Texas, it can be blown by the

 19 wind throughout the watersheds and end up being

 20 washed into our surface water reservoirs when it

 21 rains. Whereas, underground water is scarce to

 22 nonexistent in West Texas, safe surface water from
 194

 1 limited rainfall becomes extremely important to

 2 all life, including humans, animals, birds, and

 3 fish.

 4 At least 23 states have poisoned surface

 5 water and groundwater supplies caused by improper

 6 disposal and storage of coal ash. Texas is second

 7 in the nation in coal ash generation. There are

 8 no leachate collection systems in Texas, and there

 9 is no groundwater monitoring. New

 10 Earthjustice/EIP, Environmental Integrity Project,

 11 show additional coal ash contamination in our

 12 state and the entire country.

 13 According to the EPA damage case

 14 assessment, proven damage cases in Texas include

 15 Brandy Branch coal ash dump in Harrison County,

 16 Southwestern Electric Power Company coal ash dump

 17 in Titus County, and unpermitted discharges in

 18 Texas Utilities Electric Martin Lake Reservoir in

 19 Rusk County. All three have leaked dangerous

 20 levels of selenium.

 21 Coal ash is inexcusably considered

 22 exempt waste under an amendment of the Resource
 195

 1 Conservation and Recovery Act, RCRA. This is not

 2 acceptable. Industry is so diverse that it cannot

 3 regulate itself and consequently needs to be

 4 regulated with standards that protect the public

 5 as well as itself.

 6 Regulations have been unsuccessful in

 7 Texas and many other states. Regulation needs to

 8 be on a national level to include protective

 9 regulation of all states. The EPA must regulate

 10 coal ash to address the risks from the disposal

 11 and storage of the wastes generated by electric

 12 utilities.

 13 The EPA needs to support the RCRA

 14 Subtitle C designation to classify coal as a

 15 hazardous waste. Thank you, gentlemen. Thank you

 16 for your time and effort to carefully consider

 17 today's efforts and comments from concerned

 18 citizens from near and far. I wish you a good

 19 day. I'm Rogers Dennis, and I thank you.

 20 MR. BEHAN: We're going to make a quick

 21 switch on the panel. Let the record show that

 22 Elaine Eby is leaving the panel, and Golam Mustafa
 196

 1 from EPA's Dallas region, is now on the panel.

 2 Can I have Numbers 60, 62, 63, 68, and

 3 132 come forward, please, and 61. Go ahead.

 4 SPEAKER: I am Bridget Wood, from

 5 Bartlesville, Oklahoma, and I would like to tell

 6 you a story. Mrs. Reese teaches sixth grade. Her

 7 students have been in school for eight years, pre

 8 K through sixth grade. There are 17 sixth graders

 9 in Mrs. Reese's class, and nine of them have

 10 asthma. You should know about their educational

 11 environment for the past eight years.

 12 It is 1,000 miles from Disney World to

 13 Bokoshe, Oklahoma. It is 1,000 miles from Disney

 14 World to Dallas, Texas. It is 1,000 miles from

 15 Disney World to New York City.

 16 Imagine a train 1,000 miles long. It

 17 would have 80,000 cars and hold 8 million tons of

 18 coal. AES burned 8 million tons of coal in eight

 19 years. AES generated 3.2 million tons of fly ash.

 20 It filled 80,000 trucks carrying the legal maximum

 21 of 40 tons. Eighty thousand trucks bumper to

 22 bumper would stretch for 1,000 miles. That is how
 197

 1 much fly ash has been dumped in the fly ash pit

 2 1.5 miles south of the school in Bokoshe,

 3 Oklahoma.

 4 The pit is operated by a company called

 5 Making Money Having Fun. On average, it dumps one

 6 truck every 12 minutes, eight hours a day, five

 7 days a week, 50 weeks a year. One thousand miles

 8 of train cars full of coal, 1,000 miles of trucks

 9 full of fly ash dumped 1.5 miles from the school,

 10 every 12 minutes, for eight years.

 11 This is the environment in which Mrs.

 12 Reese teaches the sixth grade. This is the

 13 environment in which her children have learned

 14 since they were in preschool. This is Making

 15 Money Having Fun, and it is criminal.

 16 I come before you today to ask that you

 17 adopt Subtitle C for strict regulations of fly

 18 ash. Thank you.

 19 MR. BEHAN: 61.

 20 SPEAKER: Good afternoon. I'm Joe

 21 Starkey. I am a landowner next to the proposed

 22 Tenaska Trailblazer. Obviously, I'm against it.
 198

 1 I have a couple of points I would like to make.

 2 First of all, they're talking about

 3 selling fly ash to use in drywall and in roadways.

 4 If anybody's ever done a remodeling project, you

 5 know you get dust and you get it breathed in. The

 6 mercury and arsenic that go in that drywall would

 7 go in people's lungs.

 8 Right now at Fort Bragg, North Carolina,

 9 they are investigating the deaths of ten infants

 10 over the last two years because of toxins in the

 11 drywall which they bought from China. They're not

 12 sure exactly which of the toxins that are in that

 13 drywall are causing these deaths. But they are

 14 dying.

 15 We should make sure that fly ash in

 16 construction is not the new asbestos. It took us

 17 many years to figure out that asbestos was killing

 18 people. It's taken us many more to get rid of it;

 19 we're still not there. Let's not do that again.

 20 The Tenaska permit asks to store their

 21 fly ash in an open pit and keep it down with

 22 sprinkled water. If you look at this rain that we
 199

 1 have right now, which is going to cause flooding,

 2 has caused flooding, two days after it ends Texas

 3 will be dry as a bone.

 4 They can't keep that fly ash in that

 5 pit. It will go across the country. And this pit

 6 is located in the head of the watershed for many

 7 of the big country cities. We don't need the

 8 arsenic and mercury in our drinking water.

 9 I brought up to Mr. Greg Kunkle that

 10 there will be this stuff in the air and it's going

 11 to come down on my property, which will damage us

 12 and be a trespass. His response was, "If you can

 13 prove it, sue us." You need to regulate him so

 14 that he does not damage people for profit.

 15 My last point is one that's been made

 16 before here; and that is, profit at the cost of

 17 lives and health should not be allowed. Thank you

 18 for your time. Please regulate these people.

 19 MR. BEHAN: Thank you. Number 62.

 20 SPEAKER: My name is Whitney Root, and

 21 I'm here representing the Multi-County Coalition,

 22 a nonprofit organization based in Sweetwater,
 200

 1 Texas, that is working to stop construction of the

 2 proposed Tenaska Trailblazer Energy Center. Along

 3 with about 700 individuals throughout the Big

 4 Country area, the City of Trent, the City of

 5 Hawley, and the Texas Farmers Union are also

 6 members of our organization. My residence

 7 property extends to within a mile and a half of

 8 the site of the proposed coal plant.

 9 We are at a point in history where

 10 debate over coal products should no longer be an

 11 issue. Study upon study confirms that coal ash

 12 contains any number of poisonous materials,

 13 including, but not limited to, mercury, cadmium,

 14 arsenic, cobalt, and lead. Mercury is one of the

 15 deadliest elements on the planet. Arsenic is a

 16 potent poison. Cobalt is a carcinogen.

 17 Inasmuch as science provides proof

 18 beyond question, there should be no hesitation for

 19 the Environmental Protection Agency to regulate

 20 this waste for what it is: Hazardous. Any

 21 further debate over the issue simply stalls, once

 22 again, the day of reckoning when the truth be
 201

 1 told.

 2 Coal products and by-products are

 3 threatening to human life and therefore, by

 4 definition, hazardous. It is high time for the

 5 Environmental Protection Agency to do what its

 6 title suggests that it do: Protect American

 7 citizenry against hazards such as coal ash.

 8 Failure to do so would only constitute a further

 9 cynical delay of doing what is right and just.

 10 For well over a century, energy

 11 companies have reaped enormous profits because

 12 they've been able to ignore environmental and

 13 human concerns. It is time for the pendulum to

 14 swing back, partway at least, to we, the people,

 15 the inhabitants of this environment. It is the

 16 only environment we have, and it must be

 17 protected. That, my friends, is your job.

 18 Ansel Adams was quoted as saying, "It is

 19 horrifying that we have to fight our own

 20 government to save the environment." Please don't

 21 hesitate to do what you know is right, what is

 22 right for the American people. Coal ash must be
 202

 1 regulated under the strictest standards available.

 2 It is a hazardous waste, and it must be treated as

 3 such. Thank you.

 4 MR. BEHAN: Thank you. Number 63.

 5 SPEAKER: Good afternoon. My name is

 6 Jimmy Lambert, and I am here today as a concerned

 7 citizen.

 8 Although not affiliated with any

 9 environmental group, I do strive to support

 10 efforts to be a good steward of the environment.

 11 That being said, I am concerned that the EPA and

 12 environmental axis have taken on the

 13 administrative agenda to kill coal, when coal ash

 14 is recognized as a safe and environmentally

 15 friendly alternative to disposal.

 16 It is apparent that the federally owned

 17 corporation TVAs like Kingston served as a

 18 catalyst to promote the environmental agenda.

 19 However, I would question their design,

 20 maintenance, and location, in lieu of an acting

 21 national rule, that destroyed one of the most

 22 valuable recycling efforts in recent history.
 203

 1 The EPA will narrow the corrective

 2 action to the extent that it applies, taking the

 3 appropriate precautions and not to the detriment

 4 of the flourishing recycling effort. According to

 5 decades of research and evaluation, the EPA has

 6 stated, by their own admission, that coal

 7 combustion by-products are non-hazardous and safe

 8 to use. Furthermore, toxicity levels of CCPs are

 9 similar to the products they replace in recycling

 10 applications, and fail to justify a change from

 11 existing standards.

 12 It is my understanding that the EPA's

 13 proposed designation of CCPs as a special waste

 14 scenario to promote reuse is ambiguous, when, in

 15 fact, the Subtitle C approach, by definition, will

 16 be considered hazardous. Many companies are

 17 fearful of economic losses posed by CCP

 18 alternatives, future liabilities and competitive

 19 disadvantages generated from fear tactics.

 20 The aforementioned stigma will kill

 21 beneficial use and set back the environmental

 22 progress made over the last 20 years, resulting in
 204

 1 a loss of recycling industry that consumes 50

 2 million tons annually and provides offsets to CO2

 3 on a one-for-one basis.

 4 With the depletion of virgin materials,

 5 we need to take full advantage of the benefits

 6 provided by recycling. Even though the EPA boasts

 7 of wanting to support beneficial reuse, their

 8 stealthy approach to the systematic and strategic

 9 demise of the C2P2 program are valid proof that

 10 the EPA is misleading the public. We are seeing

 11 the immediate decay of an otherwise growing

 12 recycling effort.

 13 With over 50 percent of the power in the

 14 U.S. Generated from coal, we must maintain

 15 empowerment tactics, which includes economic and

 16 environmental systems. Further limitations on

 17 coal will worsen the economy and cause millions to

 18 lose their jobs, and we'll be faced with enormous

 19 financial burdens.

 20 This unnecessary course correction is

 21 without merit and poses to inflict economic

 22 hardship on the industry and families across the
 205

 1 nation. Simply put, a Subtitle C ruling would

 2 qualify as a jurisdictional power grab over

 3 states' rights.

 4 I ask that the EPA consider realistic

 5 data from industry and issue a ruling in favor

 6 of Subtitle D. Thank you.

 7 MR. BEHAN: Number 68.

 8 SPEAKER: My name is Julie Prejean, and

 9 I am the chemical environmental supervisor at

 10 Luminant's Oak Grove Power Plant in Robertson

 11 County, Texas. I am also a toxicology major.

 12 As a plant employee and local resident,

 13 I have seen firsthand Luminant's commitment to the

 14 safe and responsible handling of coal combustion

 15 residuals.

 16 With TCEQ's oversight, Luminant's

 17 coal-fueled power plants, such as Oak Grove, make

 18 it a priority to routinely inspect and maintain

 19 our CCR landfills and surface impoundments. An

 20 annual critical impoundment inspection is

 21 conducted by a registered professional engineer on

 22 surface impoundments that contain CCRs. These
 206

 1 reports are kept onsite for a minimum of three

 2 years as a part of the company's impoundment

 3 inspection program. All of our managed ash

 4 disposal areas are also inspected by the TCEQ

 5 periodically to ensure compliance with all

 6 applicable state and federal regulations.

 7 TCEQ has a comprehensive regulatory

 8 program to safely regulate CCR disposal practices.

 9 Environmental risk is dependent in part upon

 10 site-specific factors such as depth to

 11 groundwater, annual rainfall, and the amount of

 12 clay present in the soil. Imposing a hazardous

 13 waste designation would result in an attempt to

 14 regulate using a one-size-fits-all approach, which

 15 is not appropriate or warranted.

 16 It would also simultaneously destroy the

 17 recycling market. Since 1993, Luminant has sold

 18 nearly 40 billion pounds of CCRs. In 2009 alone,

 19 we recycled more than 2.2 billion pounds. In

 20 fact, a variety of road projects currently

 21 underway right here in North Texas are utilizing

 22 recycled coal ash from Luminant facilities.
 207

 1 Finally, regulations of CCRs as a

 2 hazardous waste would also increase compliance

 3 costs to the point that they could render certain

 4 fuels, such as Texas lignite, uneconomic. EPRI

 5 estimates that each regulation would be so

 6 uneconomical that it could result in a closure of

 7 coal-fueled power plants that are needed to

 8 produce affordable and reliable electricity to a

 9 state that has an increasing demand for

 10 electricity as witnessed this summer with new

 11 record consumptions.

 12 In summary, Luminant strongly opposes

 13 the regulation of CCRs as a hazardous material

 14 under the RCRA Subtitle C hazardous waste program

 15 and recommends that EPA continue to allow states

 16 to run their own programs. Thank you for the

 17 opportunity to comment.

 18 MR. BEHAN: Thank you.

 19 SPEAKER: My name is Bill Hale. I'm a

 20 rancher and county commissioner in Rusk County,

 21 Texas. Good afternoon, and thank you for allowing

 22 me to testify today.
 208

 1 On four different occasions during both

 2 the Republican and Democrat administrations, the

 3 EPA determined that the regulation of coal

 4 combustion residuals, CCRs, as hazardous

 5 substances was not warranted and that regulation

 6 as non-hazardous waste by the state is the

 7 appropriate option for ensuring the safe

 8 management of these materials, while preserving

 9 recycling.

 10 Texas Commission on Environmental

 11 Quality's comprehensive CCR handling and disposal

 12 regulations have proven effective. As a result,

 13 there have been no catastrophic failures at any

 14 facilities in our state.

 15 Power generation companies actively

 16 pursue opportunities to recycle CCRs, thereby

 17 decreasing energy costs, reducing emissions,

 18 saving landfill space, and using less natural

 19 resources. These residuals are used by the

 20 roofing, concrete, and carpet industries, as well

 21 as in oilfield projects and road paving.

 22 Minneapolis, Minnesota's I-35 bridge collapsed in
 209

 1 2007 and was rebuilt using high-performance

 2 concrete containing silica fume and fly ash.

 3 It is a certainty that a hazardous waste

 4 designation for CCRs would sharply increase

 5 production costs and therefore raise electricity

 6 prices for consumers. Facility and/or mine

 7 closures would cost Texas jobs and tax revenue at

 8 a time when both are in short supply.

 9 States are in the best position to

 10 regulate CCR disposal practices since the safe and

 11 responsible management of CCRs depends heavily on

 12 local climate, geology, and other site-specific

 13 factors. A one-size-fits-all federal approach is

 14 not the right answer.

 15 Job creation and the protection of

 16 current jobs are vital to economic viability in

 17 Texas and across America. I don't think anyone

 18 will argue the point that we are in hard economic

 19 times in our country. Many men and women have

 20 lost their jobs and in some cases their homes.

 21 Many others are hanging by a thread to keep their

 22 homes and pay their bills. With this in mind, why
 210

 1 would we consider any unnecessary regulations that

 2 could and would increase the electricity costs to

 3 our most vulnerable citizens?

 4 One of the most respected presidents

 5 that served our great nation was Ronald Reagan.

 6 He once said -- and I paraphrase -- government

 7 cannot legislate a prosperous and growing economy.

 8 It does, however, have a choice whether to aid or

 9 burden that economy. High taxes and unnecessary

 10 government regulations are the burdens that

 11 destroy a healthy economy and keep a slow economy

 12 from recovering.

 13 Thank you very much for your attention.

 14 MR. BEHAN: Thank you. Sixty-four, 65,

 15 66, and 67. Sixty-four.

 16 SPEAKER: Good afternoon. Thank you for

 17 the opportunity to bring information to you

 18 concerning this.

 19 Basically, we've heard a lot about the

 20 fact that the industry does a lot to recycle.

 21 We've learned that they've got a lot of ways that

 22 they want to do that. They feel like that the
 211

 1 best way to control this is at the city, the

 2 county, and the state level. As a matter of fact,

 3 back in 1999, the Western Regional Ash Group

 4 testified before the EPA to that exact fact.

 5 If we look at the Tenaska plant that's

 6 proposed for Nolan County, Texas, that's being

 7 built in a county that has just over 14,000 people

 8 for the population. The largest city within a

 9 25-mile radius of this proposed plant is the city

 10 of Sweetwater. It comes in at just over 11,000

 11 people.

 12 Once you take that 11,000 people from

 13 the city of Sweetwater out of the county numbers,

 14 you're basically looking at a little over 1,000

 15 people. And we're expecting county commissioners,

 16 because the city is not going to be regulating it

 17 -- the plant's not being built in the city -- and

 18 we're going to expect county commissioners, who

 19 are ill-equipped and undereducated, to deal with a

 20 $3.5-plus billion industry's waste, trash.

 21 They're not able to do that.

 22 That bumps us up to the next level,
 212

 1 which is the state. We've heard numerous people

 2 testify here today that TCEQ does a wonderful job.

 3 There was actually a bill introduced in the

 4 legislature last session, House Bill Number 1450.

 5 This bill was up before the Environmental

 6 Regulation Committee.

 7 One of the aspects of this regulation,

 8 or this bill, was to require the coal plants, when

 9 they do do the test for metals and determine that

 10 the water has been contaminated, that they simply

 11 let the residents around the plant know, hey, your

 12 water may be contaminated, because we found

 13 contamination in the water. This bill was heavily

 14 opposed by the coal industry. It ended up dying

 15 in committee.

 16 TCEQ doesn't regulate the coal trash,

 17 the coal waste. It's time for the EPA to step up

 18 and deal with the coal waste as the hazardous

 19 waste that it is, and to actually do that under

 20 the Subtitle C. As Ryan Rittenhouse said earlier,

 21 that's a minimum. As an Environmental Protection

 22 Agency, we should be doing much more.
 213

 1 MR. BEHAN: Sir, could you state your

 2 name.

 3 SPEAKER: My name is Jimmy Headstream,

 4 Sweetwater, Texas, member of the Multi-County

 5 Coalition.

 6 MR. BEHAN: Thank you, sir.

 7 SPEAKER: Good afternoon. My name is

 8 Jerry Smith, and I've been in the business of

 9 recycling coal ash for the last 12 years.

 10 During that time, I have repeatedly

 11 bragged to my family and friends about being part

 12 of the greatest recycling success story in the

 13 history of this country. I consider myself an

 14 environmentalist, and I believe that beneficial

 15 reuse of resources is critical to the history of

 16 this planet.

 17 I have witnessed the growth of the coal

 18 ash reuse industry. It has grown from most people

 19 seeing coal ash as an unwanted, costly waste

 20 product to becoming a very valuable resource with

 21 many uses, including use in concrete, concrete

 22 products, masonry products, soil stabilization
 214

 1 agents, wallboard, and the list goes on and on.

 2 Today, our industry, our success story,

 3 is in jeopardy, not because the EPA doesn't

 4 support beneficial use, because I believe you do,

 5 as you have shown in the past by sponsoring the

 6 C2P2 program, but because there is a very real

 7 risk of assigning a stigma to these products that

 8 would be extremely detrimental to our efforts.

 9 There are many anticipated and

 10 unanticipated legal liabilities that await all of

 11 us if coal ash is stigmatized with a RCRA Subtitle

 12 C hazardous designation. As you know, and due in

 13 part to the EPA's encouragement and support, coal

 14 ash usage is very widespread, and thousands of

 15 people handle it every day. Can you imagine the

 16 lawsuits that will result from coal ash being

 17 handled two different ways? One by highly trained

 18 workers treating coal ash as hazardous as it's

 19 disposed of and one by those treating it as a

 20 non-hazardous product.

 21 A handful of highly publicized lawsuits

 22 -- and they will be highly publicized -- will end
 215

 1 coal ash usage as we know it today. For many

 2 utilities, end users, DOTs, small businesses and

 3 big businesses, it will not be worth the risk.

 4 You can do everything possible to encourage reuse

 5 of coal ash, but you cannot protect these entities

 6 from lawsuits.

 7 Everyone at this meeting will agree that

 8 disposal practices of coal ash can and should be

 9 improved. So I ask you today to rule in favor of

 10 the Subtitle D solid waste option and not the

 11 Subtitle C hazardous designation. The disposal

 12 options that you have proposed provide essentially

 13 the same level of protection for the environment.

 14 We have to avoid the stigma associated with the

 15 Subtitle C designation.

 16 Prior to getting involved in this

 17 industry 12 years ago, I was in the hazardous

 18 waste remediation disposal industry. I agree with

 19 the EPA's previous determination that there is

 20 nothing about coal ash that warrants a RCRA

 21 Subtitle C hazardous designation. Thank you for

 22 your time.
 216

 1 MR. BEHAN: Thank you.

 2 SPEAKER: My name is Barbara Lawrence,

 3 and I live in Freestone County, Texas. I

 4 represent the citizens group COPPS For Clean Air,

 5 Freestone County chapter.

 6 My husband and I moved to Freestone

 7 County when we retired, for the peace and quiet of

 8 the country, the clean air, and the outdoor

 9 lifestyle. What a surprise greeted us. Freestone

 10 County is home to a very old and very dirty

 11 coal-fired power plant: Big Brown. And just

 12 across the county line is another of the dirtiest

 13 in the country: Energy Limestone.

 14 There is a local legend that when you

 15 get cancer and go to Houston, to MD Anderson

 16 Cancer Center, they say to you, "Oh, you're from

 17 Freestone County; you must live near that coal

 18 plant." I can't say that it's true, but then

 19 again, I heard say a lot.

 20 We also have a high incidence of autism,

 21 thought to be related to mercury. I don't know

 22 the statistics, but I do know that in a county
 217

 1 with a population of under 20,000, the incidence

 2 is high enough that they are raising money to

 3 build their own school for autistic children. For

 4 me, that fact seems astonishing.

 5 Since we moved to Freestone County, my

 6 husband sleeps with an oxygen tank and has a home

 7 breathing machine. Remember that outdoor

 8 lifestyle I mentioned? Well, he can't spend too

 9 much time outside because the air quality is

 10 frequently very unfriendly. Many of my neighbors

 11 are retirees, and many experience health problems

 12 similar to my husband's.

 13 I understand the concern of many I've

 14 heard here today in support of Big Brown. It's

 15 their livelihood. But our health is more

 16 important, and Big Brown isn't going out of

 17 business, so let's weigh our options here: Death

 18 and disease, more corporate profits. To me, it's

 19 just not a contest.

 20 I just learned about coal ash and the

 21 possible contamination of our groundwater. Big

 22 Brown has been burying coal ash in the ground
 218

 1 without strict regulation and they've been doing

 2 it for nearly 40 years.

 3 The lake on which I live, which is only

 4 a few miles from Big Brown, is the third largest

 5 in the state of Texas and is a reservoir for

 6 Tarrant County. That's potentially a lot of

 7 contaminated water affecting a lot of people.

 8 Given the high incidence of cancer and

 9 autism in Freestone County, the poor air quality,

 10 and the fact that we have multiple recreational

 11 lakes that risk contamination, I implore the EPA

 12 to strictly regulate coal ash disposal. Thank

 13 you.

 14 MR. BEHAN: Thank you.

 15 SPEAKER: Good afternoon. My name is

 16 Barry Boswell. I'm a director of generation at

 17 Luminant.

 18 Luminant has more than 18,300 megawatts

 19 of generation in Texas, including 8,000 megawatts

 20 fueled by coal. We operate five baseload

 21 coal-fueled power plants which help to meet the

 22 ongoing power needs of the power market on an
 219

 1 almost continuous basis. Our plants are fueled by

 2 Texas lignite that we mine. At some facilities we

 3 also use western coal.

 4 Today, I speak for thousands of Luminant

 5 employees across Texas to say that we genuinely

 6 care about our communities' and employees' safety

 7 and our legacy of environmental stewardship. We

 8 take personal responsibility for running our

 9 plants and processes in the absolute best way

 10 possible. We are committed to complying with all

 11 relevant rules, regulations, and laws governing

 12 our generating plants.

 13 Finally, we hold the highest standards

 14 to not only protect the environment, but also the

 15 public's health. We live in these communities, as

 16 do our families, our neighbors, and our friends.

 17 We have been committed partners to our

 18 surrounding communities and counties for decades.

 19 We are an important part of the local communities,

 20 with jobs and local spending. In 2009 alone, our

 21 lignite plants and mines paid nearly $64 million

 22 in tax contributions to surrounding counties and
 220

 1 school districts, which have been used to

 2 construct modern public facilities and provide

 3 needed services.

 4 As one of the largest power generators

 5 in the state, we are acutely aware of our

 6 environmental responsibilities. My company has

 7 spent hundreds of millions of dollars voluntarily

 8 on new environmental controls across our fleet.

 9 When it comes to coal combustion

 10 by-products, we are just as committed to doing the

 11 right thing for the state. We are in full

 12 compliance with the Texas Commission on

 13 Environmental Quality's comprehensive coal

 14 combustion residual handling and disposal

 15 regulations. We make it a priority to inspect and

 16 maintain our CCR landfills at all facilities

 17 through routine observations and detailed surface

 18 impoundment inspections. All of this is a

 19 responsibility we take very seriously.

 20 Unnecessary additional regulations of

 21 coal ash as a hazardous waste would have a

 22 significant impact on countless businesses and
 221

 1 employees who depend on these products for their

 2 commerce and livelihood.

 3 The coal combustion by-products from our

 4 plants have been an integral part of construction

 5 for many roads across Texas, many of which are

 6 located right here in the Dallas area. This

 7 includes the Dallas High Five Interchange, Dallas

 8 North Tollway, the George Bush Tollway, and State

 9 Highway 121.

 10 In summary, Luminant strongly opposes

 11 the regulation of CCRs as a hazardous material

 12 under the RCRA Subtitle C hazardous waste program

 13 and recommends that EPA continue to allow states

 14 to run their own programs. Thank you for the

 15 opportunity to comment.

 16 MR. BEHAN: Thank you. Numbers 69, 70,

 17 71, and 72.

 18 SPEAKER: I'm Charles Morgan, registered

 19 professional engineer in Texas. I represent

 20 Citizens For Environmental Clean-Up in Fairfield,

 21 Texas.

 22 Freestone County is the home of Big
 222

 1 Brown I and II, the 23rd dirtiest, most polluting

 2 power plant in the United States, the most

 3 polluting power plant in Texas. They generate

 4 about 86,000 tons per year of sulphur dioxide

 5 alone, not to mention all the nitrogen oxides, but

 6 they also generate about 300,000 tons per year of

 7 coal ash waste.

 8 Citizens For Environmental Clean-Up

 9 request that Subtitle C be the preferred method of

 10 control of the coal ash combustion residuals due

 11 to the hazardous elements found to exist in the

 12 CCRs, such as mercury, selenium, thallium,

 13 arsenic, and others. These wastes must be

 14 periodically tested to determine concentration of

 15 toxic elements, and not just a one-time test.

 16 Reuse of CCR waste must be such that

 17 these wastes are totally encapsulated. If that's

 18 used in concrete, fine. But use on roadways, even

 19 onsite, must not be allowed because there is so

 20 much coal traffic carrying the coal from the site,

 21 the mining site, to the plant that these wastes

 22 become airborne and they contaminate areas all
 223

 1 around the mining area, plus the water streams,

 2 like Fairfield Lake and the Trinity River. These

 3 CCRs must not be allowed to be buried under or

 4 with the reclamation materials during the land

 5 reclamation processes after the coal removal, and

 6 then all of the outfalls in coal ash ponds must

 7 have elements specified for testing in that

 8 outfall effluent.

 9 We must protect our environment from

 10 contamination and hazardous waste contained in the

 11 CCRs. The EPA table showing cost and benefit

 12 ratios shows a higher cost for the Subtitle C

 13 method of control, but the table also shows a

 14 greater benefit, many times greater benefit than

 15 the cost, and a much greater benefit than the

 16 Subtitle D proposal.

 17 Therefore, the CEC request Subtitle C be

 18 used as the method of CCR control. Our people are

 19 our greatest asset. Our families must be

 20 protected. Thank you.

 21 MR. BEHAN: Thank you.

 22 SPEAKER: Good afternoon. Thank you for
 224

 1 the opportunity to provide my input regarding the

 2 proposed CCR disposal rules. My name is Eric

 3 Pastor. I'm a licensed professional engineer in

 4 11 states including Texas. I've been an

 5 independent consulting environmental engineer in

 6 private practice for 26 years.

 7 I've never previously provided formal

 8 comment on an EPA regulation, but after reviewing

 9 the proposed CCR rules and, more importantly,

 10 reading comments that characterize state

 11 regulatory agencies as not adequately monitoring

 12 CCR disposal sites and having refused to do their

 13 jobs, I felt compelled to set the record straight

 14 for Texas, based on my firsthand experience.

 15 In my opinion, the rules and guidance of

 16 the Texas CCR management program as administered

 17 by the TCEQ are sound, and the TCEQ program staff

 18 are dedicated and competent. To support this

 19 conclusion, let me first start with a brief review

 20 of the process that must be followed before a CCR

 21 disposal facility can be used.

 22 Under Rule 335.6 of Title 30 of the TAC,
 225

 1 a person that intends to store, process, or

 2 dispose of industrial solid waste such as CCR must

 3 provide 90 days' prior notice to the TCEQ.

 4 Elements of this notification, which we often

 5 refer to as a registration package, include

 6 information regarding waste composition, waste

 7 management methods, facility engineering plans and

 8 specifications, and the hydrogeologic setting of

 9 the proposed disposal facility.

 10 The registration packages that we

 11 produce in my firm usually include the groundwater

 12 monitoring plan, closure plan, and a post-closure

 13 inspection and maintenance plan. Once submitted,

 14 registration packages are reviewed by TCEQ Waste

 15 Permits Division. I have found these reviews to

 16 be thorough, detailed, and comprehensive.

 17 Comments that we have received on

 18 registration packages have ranged from request for

 19 justification and monitoring well locations and

 20 statistical groundwater data valuation procedures

 21 to details on waste-handling methods.

 22 These regulations are supported by a
 226

 1 series of technical guidance documents that cover

 2 topics ranging from site selection to landfill

 3 design, construction and groundwater monitoring.

 4 These documents, which were first developed in the

 5 1970s, are regularly reviewed and updated by TCEQ

 6 staff to ensure they are current.

 7 Potential releases from CCR disposal

 8 facilities do not go unchecked but are managed

 9 underneath a well-established Texas risk reduction

 10 program which has a nearly 15-year track record of

 11 success in directing the investigation and

 12 remediation of environmental releases, and is

 13 supported by more than two dozen guidance

 14 documents.

 15 Last, I would like to note that in my

 16 frequent interactions with the engineers and

 17 scientists of the TCEQ programs, although I have

 18 not always been in complete agreement on all

 19 technical issues, I have found them to be solid

 20 professionals who take their mission of protecting

 21 health and the environment very seriously. Thank

 22 you for the opportunity to provide these comments.
 227

 1 MR. BEHAN: Thank you.

 2 SPEAKER: Good afternoon. My name is

 3 Frank Johnson. I've been in the concrete

 4 aggregate business for 47 years. I'm vice

 5 president of Hallett Materials, the Texas

 6 division, and the chairman of the Texas Aggregates

 7 and Concrete Association. TACA has been in Texas

 8 for 50 years and it is a statewide organization

 9 that represents over 350 producer companies. In

 10 Texas alone, the cement industry and related

 11 construction industry contribute more than 75,000

 12 jobs to the state economy.

 13 Our members use and rely on coal ash

 14 products, particularly fly ash, in production of

 15 materials. With the help of the EPA and a Coal

 16 Combustion Products Partnership, or C2P2, our

 17 members have expanded our use of coal ash in

 18 various products.

 19 EPA's rule and proposal highlights

 20 increase the beneficial use of coal ash, not

 21 including mine filling, from 23 percent in 1995 to

 22 37 percent in 2008. Environmental benefit to this
 228

 1 increase is great. Ash should not be thrown away.

 2 Instead, it should be recycled, being used in

 3 proven safe products that we (inaudible). Based

 4 on EPA's old numbers, 13.7 million tons of coal

 5 ash were recycled and used in place of portland

 6 cement in 2007. This energy savings is equal to

 7 the energy used in 676,000 homes. It also reduced

 8 greenhouse gas missions equal to taking 2.3

 9 million cars off the road.

 10 Recycling coal ash is something TACA

 11 members are proud of, but we're afraid that all

 12 the beneficial reuse will come to an end if EPA

 13 finalizes Subtitle C regulatory option. Calling

 14 coal ash a special waste does not eliminate

 15 liability, the stigma. In the marketplace there

 16 are other market concerns.

 17 The EPA discussing the hazardous waste

 18 regulations and holding these hearings makes it

 19 hard to recycle coal ash and use it in

 20 construction material products. The stigma is

 21 real. Coal-fired power plants have already said

 22 they will be very unlikely to buy coal ash from
 229

 1 our members out of fear of liability. Even if our

 2 members can obtain coal ash, they will be inclined

 3 to look for other products.

 4 We do not want to deal with the

 5 potential liability of operational requirements

 6 for handling coal ash classified as a hazardous

 7 waste when not beneficially used. Also, buyers of

 8 our products that contain coal ash will look for

 9 other options because consumers do not want to buy

 10 materials stigmatized as hazardous waste.

 11 Our members provide a valuable resource

 12 found in countless products which will literally

 13 serve as the foundation to allow our economy to

 14 recover. A hazardous waste regulation and

 15 accompanying stigma will destroy the beneficial

 16 sector of our industry. This will increase costs

 17 while we are all struggling in the economy and

 18 also several member companies already operating a

 19 small (inaudible).

 20 To protect the beneficial use, protect

 21 our environment, and protect our members, on

 22 behalf of the Texas Aggregates and Concrete
 230

 1 Association, I ask that you not regulate coal ash

 2 as a hazardous waste, but if you determine that

 3 more regulation is even necessary, instead

 4 regulate it as a non-hazardous waste. Thank you.

 5 MR. BEHAN: Thank you. Number 72.

 6 SPEAKER: I appreciate this opportunity

 7 to address the critical issue of coal fly ash. My

 8 name is Susan Schmidt. I'm a concerned citizen

 9 from Oklahoma City. I have been studying coal

 10 pollution issues for the last year and a half.

 11 About 70 percent of the planet is

 12 covered in oceans. Ninety-eight percent of all

 13 the water on the earth is in those oceans and

 14 therefore undrinkable due to salt. That leaves

 15 about 2 percent freshwater. Most of that, 1.6

 16 percent, is locked up in the polar ice caps and

 17 glaciers, which will be added to the oceans when

 18 they melt. There is some water in the air. So

 19 that leaves less than half of 1 percent left in

 20 the groundwater aquifers, wells, and in our lakes

 21 and rivers.

 22 That one-half of a percent is, quote,
 231

 1 freshwater. But freshwater does not mean it's

 2 safe to drink or available where it is needed.

 3 In August, I RV camped in New Mexico's

 4 Carson National Forest. The water pump in camp

 5 was not working. The local ski resort began

 6 charging 25 cents a gallon for water out of their

 7 garden hose. In less than a week, they went up to

 8 a dollar a gallon. It wasn't due to a lack of

 9 water. Like today, the unusual summer rains were

 10 overflowing the creeks. There was plenty of water

 11 but not enough that was safe to drink.

 12 Mark Twain is attributed with the quote,

 13 "Whiskey is for drinking; water is for fighting

 14 over."

 15 I bring up this recent and personal

 16 experience because coal ash threatens the quality

 17 of the tiny percent of freshwater that is

 18 available to all life forms from amphibians and

 19 fish, up the food chain to us.

 20 This past July, the Oklahoma Department

 21 of Environmental Quality issued a warning.

 22 Sixteen lakes in the state of Oklahoma contain
 232

 1 species of fish with mercury levels that are

 2 unsafe for unlimited consumption. Two of the

 3 lakes have fish that are unsafe to eat at any

 4 levels by anybody.

 5 In researching the symptoms of mercury

 6 poisoning, I found an EPA quote that puts any

 7 human-caused mercury poisoning into perspective.

 8 Quote, "A little mercury is all that humans need

 9 to do away with themselves, quietly, slowly, and

 10 surely," unquote.

 11 As you know, a large part of mercury

 12 pollution comes from coal-fired power plants. The

 13 mercury and other harmful by-products that go up

 14 the smokestack end up in the fly ash, and the fly

 15 ash is trucked and dumped not far from where it's

 16 burned.

 17 I took a map of the 16 lakes with

 18 mercury contamination and overlapped a map of

 19 coal-fired power plants which, by association,

 20 includes fly ash disposal sites. They cover the

 21 same three-fourths of the state of Oklahoma. Only

 22 the northwest corner of Oklahoma did not have any
 233

 1 lakes included in the mercury warnings, and only

 2 the northwest corner of Oklahoma does not have any

 3 coal-fired power plants.

 4 The citizens of Bokoshe, Oklahoma, have

 5 testified to the hazards of fly ash in their

 6 community. Sadly, their story is not unique. It

 7 is obvious to me the EPA must protect our nation's

 8 precious drinking water supply from fly ash

 9 contamination with Subtitle C. Thank you.

 10 MR. BEHAN: We're going to have a panel

 11 change right now. Let the record reflect that

 12 Craig Dufficy, U.S. EPA, is returning to the panel

 13 to replace Jim Kohler.

 14 Numbers 73, 74, 76, 77. Is there anyone

 15 in the room who has not spoken who has a number

 16 less than 75? 222.

 17 SPEAKER: Good afternoon. My name is

 18 Mark Bowles, and I appreciate the opportunity to

 19 speak before you today. I am the environmental

 20 support manager for Entergy Services, and I'm

 21 speaking today on behalf of Entergy Corporation.

 22 Let me begin by first stating that
 234

 1 Entergy is supportive of federal regulations for

 2 CCRs under RCRA Subtitle D non-hazardous waste

 3 rules, though, as I'll discuss, any Subtitle D

 4 program must recognize and allow the proper role

 5 of the states in administering these rules.

 6 Entergy Corporation is an integrated

 7 energy company engaged primarily in electric power

 8 production and retail distribution operations.

 9 Entergy, along with its utility group members and

 10 various trade associations, has worked closely

 11 with the EPA and both the Arkansas and Louisiana

 12 Departments of Environmental Quality to ensure

 13 that the management of CCRs is done in such a way

 14 that it protects the environment, complies with

 15 regulations, and ensures the continued beneficial

 16 reuse of CCRs.

 17 Entergy's three coal plants located in

 18 Arkansas and Louisiana have historically reused

 19 over 75 percent of their CCRs on an annual basis.

 20 We strongly believe that any regulation that adds

 21 a hazardous waste designation for this material,

 22 such as the Subtitle C option in the current
 235

 1 proposal, would be counterproductive and present a

 2 sigma on CCR beneficial reuse, thereby seriously

 3 undermining future recycling efforts.

 4 The three coal plants that Entergy

 5 operates are permitted by the Arkansas and

 6 Louisiana Departments of Environmental Quality.

 7 Both state programs require that landfills be

 8 constructed with compacted clay or geosynthetic

 9 liners, meet stringent design criteria, conform to

 10 standardized operational requirements, conduct

 11 groundwater monitoring, and comply with closure

 12 and post-closure criteria as well as provide

 13 financial assurance. Arkansas and Louisiana are

 14 two states that have demonstrated that states can

 15 manage CCR disposal and should be the

 16 administrators of any Subtitle D option.

 17 Entergy has evaluated the alternatives

 18 contained in EPA's proposed rule and believes that

 19 the Subtitle D Prime option is the best solution.

 20 Unlike the Subtitle C approach, D Prime will

 21 establish a robust and environmentally protective

 22 program for coal ash storage and disposal units
 236

 1 without crippling coal ash beneficial use and

 2 imposing unnecessary regulatory costs on power

 3 plants, threatening jobs and increasing

 4 electricity costs. The Subtitle D Prime option

 5 recognizes that existing CCR impoundments with

 6 sound performance should be allowed to continue to

 7 operate.

 8 However, Entergy feels that the Subtitle

 9 D Prime option, as written, requires improvements,

 10 including allowing for administration of the

 11 federal Subtitle D rules for CCRs by state

 12 regulatory programs, to avoid duplication of

 13 federal and state efforts. This would also allow

 14 states to enforce compliance through a traditional

 15 permitting framework.

 16 Entergy also believes that this option

 17 does not limit EPA's enforcement authority since

 18 4010(c) of RCRA and similar provisions clearly

 19 allow the EPA to oversee state rules regulating

 20 solid waste. EPA already does this with municipal

 21 solid waste landfills and non-municipal solid

 22 waste landfills that may receive conditionally
 237

 1 exempt small quantity generator hazardous waste.

 2 For these reasons, we ask the EPA to

 3 select the Subtitle D Prime option in its final

 4 rule. Thank you.

 5 MR. BEHAN: Thank you.

 6 SPEAKER: Good afternoon, and thank you

 7 for this time today. My name is Gloria Tedrick,

 8 and I'm a citizen of the state of Oklahoma and

 9 Washington County.

 10 Being born at the end of World War II, I

 11 have lived through the Cold War, bomb shelters,

 12 the Bay of Pigs, Vietnam, Desert Storm, and our

 13 war with Iraq. I worried about Kruschev, but I

 14 never worried about breathing the air and the

 15 water I drank, until living close to a coal-fueled

 16 power plant.

 17 Exposure to air and water pollution and

 18 poisons can have permanent health effects with a

 19 range of diseases from asthma to cancer. We know

 20 that fly ash contains substantial amounts of lead,

 21 mercury, arsenic, and other carcinogens.

 22 We must have both existing landfills and
 238

 1 existing surface impoundments to be listed as

 2 special waste subject to the regulation under

 3 Subtitle C. We need Subtitle C because our

 4 state's regulators refuse to enforce the law while

 5 companies like AES and Making Money Having Fun

 6 create another disaster like Picher, Oklahoma, or

 7 Kingston, Tennessee.

 8 The EPA's actions must ultimately be

 9 protective of human health and the environment. A

 10 failure to regulate this toxic material would be a

 11 failure to each citizen who breathes the air and

 12 utilizes the water.

 13 I strongly request the EPA to determine

 14 that the disposal of coal combustion waste

 15 warrants regulation under Subtitle C as a

 16 hazardous waste. Thank you very much.

 17 MR. BEHAN: Thank you.

 18 SPEAKER: Good afternoon. Thank you for

 19 letting me speak. My name is John Tedrick. I'm

 20 from Washington County, Oklahoma. I'm a

 21 mechanical engineer by profession. I am troubled

 22 by the manner in which fly ash is handled and
 239

 1 regulated in Oklahoma. I strongly request the EPA

 2 to regulate coal ash, and I'm here to add my voice

 3 to the support of the Subtitle C option.

 4 Nationwide, states lack the incentive to

 5 regulate coal combustion waste. They are failing

 6 to take the responsibility of regulating fly ash

 7 in a safe manner. There is a great social

 8 injustice done to the communities in rural

 9 Oklahoma. They have become the dumping grounds

 10 for industrial waste products.

 11 With your help, we can have federally

 12 enforced safeguards for the management of coal

 13 ash. There is no way to guarantee the American

 14 people that a disaster like Kingston, Tennessee,

 15 will never happen again. But if coal combustion

 16 wastes are listed as special waste under Subtitle

 17 C of the Resource Conservation and Recovery Act,

 18 we'll be much better protected.

 19 Because of all the toxic chemicals in

 20 coal ash such as mercury, lead, and arsenic, it is

 21 completely unreasonable to treat coal ash the same

 22 way as household garbage. Coal ash is hazardous,
 240

 1 and it should be regulated that way.

 2 Please select the Subtitle C option and

 3 regulate coal ash as a special hazardous waste.

 4 Thank you.

 5 MR. BEHAN: Thank you.

 6 SPEAKER: Okay. Thank you. My name is

 7 Hal Suter. That's for the benefit of your court

 8 reporters. S-U-T-E-R. That -- that last name is

 9 spelled a variety of different ways. I am the

 10 chair of the Lone Star Chapter of the Sierra Club.

 11 I know a number of people from the organization

 12 have come up here and spoke on the issue, and you

 13 probably have some people who come here before.

 14 About all I can basically say is that ditto to

 15 what they've said. We want -- we support the

 16 regulation under Subtitle C.

 17 I've heard a variety of people talking

 18 about, let's have the states regulate this on

 19 their own. And I guess in theory, that sounds

 20 like a pretty good idea; to have the government,

 21 you know, closer to the people and that they will

 22 be able to do a better job. Unfortunately, when
 241

 1 you get out there in the real world and

 2 particularly in issues such as this, you're going

 3 to need to have someone oversee -- not necessarily

 4 regulate, but oversee -- who is less susceptible

 5 to political pressure. And I think that you will

 6 find that at the state level, you are going to

 7 find much more political pressure than you will at

 8 the federal level.

 9 I was kind of ashamed in a way listening

 10 to some of my brothers and sisters from Oklahoma

 11 and Louisiana and Arkansas, talking about the

 12 division of all theses various agencies and all

 13 the problems they have. And I was sitting there

 14 -- well, hallelujah, Texas is not alone. We have

 15 here with the Texas Com -- quote, Texas Commission

 16 on Environmental Quality, unquote, that supposedly

 17 regulates a variety of things (unintelligible.)

 18 You could fill this room, every ballroom in

 19 downtown Dallas, with people who have had

 20 experiences with the, quote, TCEQ, unquote, and

 21 are still bleeding.

 22 I think with -- the name should be
 242

 1 changed, instead of TCEQ, to T-I-P-A, TIPA, Texas

 2 Industrial Permitting Agency. They do very --

 3 they do very little in the way of looking for the

 4 individual common citizen first. Whether it's

 5 about a statutory, things that's kind of the

 6 legislature, whether it's by the agen -- by the

 7 pressures of the industry itself, they do not do

 8 the job that they should.

 9 While in theory I would like it to stay

 10 closer to the people and the -- and leave it up to

 11 the individual states, in reality, if we're going

 12 to do something about this problem, it's going to

 13 have to be done by your agency, the EPA. So I'll

 14 just reiterate the support for -- put it under

 15 Subtitle C. Thank you very much.

 16 MR. BEHAN: Thank you. Number 78,

 17 Number 81. Are 79 and 80 here? 109, 121, 225,

 18 226. Go ahead, sir.

 19 SPEAKER: Good afternoon. My name is

 20 Mike Altavilla. And my present position is the

 21 environmental compliance superintendent for Texas

 22 Westmoreland Coal Company. And I'm here today as
 243

 1 chairman of the Texas Mining and Reclamation

 2 Association, TMRA's Lignite Committee. TMRA

 3 appreciates the opportunity to present its

 4 comments here today.

 5 TMRA is a Texas nonprofit trade

 6 organization comprised of approximately 100 mining

 7 electric utility and supplier members. We support

 8 coordinated, rational, and consistent federal,

 9 state, and local policies to assure the economic

 10 recovery and use of this state's mineable

 11 resources in an environmentally sound and

 12 responsible manner. TMRA's members play a vital

 13 role in the Texas economy.

 14 The -- the Texas lignite mining industry

 15 alone spends in excess of $100 million each year

 16 on land reclamation and protection of water, air,

 17 and other environmental resources. Texas contains

 18 the largest electric market in the country,

 19 generating 80 percent more electricity than any

 20 other state. Baseload coal generation accounts

 21 for about 38 percent of this amount. And 37

 22 million tons of Texas lignite was mined in 2009.
 244

 1 Coal production and use in Texas creates over

 2 33,000 jobs.

 3 Recycling and the beneficial use of coal

 4 ash is something TMRA members strongly support.

 5 Whether beneficially used in coal mining

 6 reclamation or recycled and used in a number of

 7 construction materials, these uses should be

 8 encouraged. Beneficial use reduces greenhouse

 9 gases, emissions, and also reduces disposal needs.

 10 Our members are concerned that the beneficial use

 11 of CCRs will halt or severely be restricted if EPA

 12 finalizes the Subtitle C regulatory option.

 13 TMRA supports EPA's exclusion of mine

 14 filling from the rule proposals, specifically as

 15 it relates to the placement or use of CCRs and

 16 Texas surface mine reclamation. Consider the

 17 following: There is no evidence suggesting any

 18 negative effects from using CCRs in mine

 19 reclamation and this land is highly valued and in

 20 demand when it is released. A hazardous

 21 designation would also raise the cost of

 22 reclamation, increase energy use in emissions, and
 245

 1 could delay timely reclamation. The Texas program

 2 through the environmental and surface mining

 3 regulators in Texas is protecting human health and

 4 the environment, and there is no need for

 5 additional federal regulation.

 6 Moreover, EPA's proposal for the

 7 regulation of CCR's as a hazardous material under

 8 Subtitle C, which strips states of the ability to

 9 cost effectively regulate CCR disposal practices

 10 and would impede the beneficial reuse of CCRs. In

 11 summary, TMRA opposes any regulation of CCRs as a

 12 hazardous material under the RCRA Subtitle C

 13 hazardous waste program. Texas already has 

 14 in place a program protective of the public and the

 15 environment. A new one-size-fits-all federal

 16 program for Texas is not needed. Thank you for

 17 this opportunity to provide comment.

 18 MR. BEHAN: Thank you.

 19 SPEAKER: My name is Samuel Wilcher.

 20 I'm from Baton Rouge, Louisiana. And I want to

 21 thank the panel for giving me an opportunity to

 22 discuss my -- my reservations about the regulation
 246

 1 that you're about to undergo -- the regulation and

 2 concerns you're about to undergo. The need for

 3 tougher regulations on coal ash is now. We in the

 4 state of Louisiana have been dealt a

 5 well-documented mix of manmade disasters that stem

 6 from lax regulations and oversight. What kind of

 7 message are we sending to our children if profits

 8 are put ahead of the air we breathe and the water

 9 we drink and the soil that sustains us?

 10 In my home city of Baton Rouge, we are

 11 affected by pollution from the Big Cajun II Power

 12 Plant. This contamination affects the mighty

 13 Mississippi River, as well as other water sources

 14 in the area. In Hurricane Katrina, profits were

 15 put ahead of the safety of our community. Due to

 16 this manmade disaster, I lost my home. My health

 17 should not be put at risk due to industry

 18 shortcomings.

 19 In New Orleans, Charlie -- Chinese

 20 drywall has been labeled as hazardous, yet we see

 21 that activists such as Brad Pitt and the Make It

 22 Right Foundation and Wendall Pierce with the
 247

 1 Pontchartrain Park Foundation have proven that

 2 sustainable design can be achieved if we allow for

 3 innovation.

 4 The "P" in EPA stands for protection,

 5 not profits. I'm calling on the administration

 6 and Congress to enact laws on coal ash. Today, my

 7 colleagues and I believe in a sustainable future.

 8 And this vision can only be achieved by the

 9 administration and Congress working together. I

 10 am pleading with this panel to -- to please not

 11 bury your heads in the sand, especially if that

 12 beach is anywhere near a coal ash landfill or

 13 power plant. Thank you.

 14 MR. BEHAN: Thank you.

 15 SPEAKER: Good afternoon. I'm David

 16 Schanbacher. I'm with the Office of the Texas

 17 Comptroller of Public Accounts. EPA's proposed

 18 rules to regulate coal ash are not the best way to

 19 address this issue and will unnecessarily harm

 20 both the economy and the environment. According

 21 to EPA's Web site, the -- the proposed rules are

 22 intended to address potential environmental
 248

 1 problems at coal ash disposal facilities, such as

 2 landfills and impoundments. We've all heard about

 3 the regrettable event in Tennessee that showed

 4 that disposal facilities at some sites need to be

 5 improved.

 6 But recycling coal ash is good for the

 7 environment and good for the economy. Quoting

 8 from EPA's own Web site, industrial materials such

 9 as coal ash are valuable products of industrial

 10 processes. Putting these commodities into

 11 productive use saves resources and contributes to

 12 a sustainable future.

 13 Even though EPA has attempted to allow

 14 the continued recycling of coal ash, these rules,

 15 if adopted, will have the unintended consequence

 16 of discouraging it. In a December 22nd letter to

 17 EPA Administrator Jackson, ASTM International said

 18 that designation of fly ash as a hazardous waste,

 19 even with an exclusion for beneficial use, will

 20 likely result in little or no fly ash being -- re

 21 -- being used in beneficial -- excuse me -- being

 22 used beneficially in concrete or other
 249

 1 applications that supports sustainability options

 2 -- objectives.

 3 The Texas state economy will suffer if

 4 the beneficial use of coal ash is eliminated.

 5 Since 2005, the Texas Department of Transportation

 6 has used about 185,000 to 275,000 tons of coal ash

 7 per year as a concrete additive. The coal ash

 8 additive reduces the incidence of ASR distress and

 9 the costly repairs to structures such as bridges.

 10 The elimination of coal ash as a concrete additive

 11 will require the use of more costly and sometimes

 12 less effective substitutes.

 13 The previously recycled coal ash must

 14 now be disposed; the very activity that EPA's Web

 15 site says is causing the environmental concerns.

 16 The coal ash waste will soon exceed the capacity

 17 of current disposal resources and will likely

 18 cause operational regulatory issues for coal-fired

 19 power plants. These power plants generate over 37

 20 percent of Texas' electricity. Any -- any

 21 disruption to this reliable baseline power could

 22 raise electricity prices, jeopardize the electric
 250

 1 grid, and further strain already struggling state

 2 economies.

 3 A review of Texas regulations,

 4 standards, and practices related to the use of

 5 coal ash conducted for the EPA by the Energy and

 6 Environment Research Center concluded that Texas

 7 has a successful program to encourage the

 8 beneficial use of coal ash. One of the keys to

 9 Texas' success is the flexibility TCEQ has to

 10 allow beneficial use of coal ash while retaining

 11 the regulatory option to correct any problems that

 12 arise. Further, the report says that one of the

 13 threats that could hinder recycling in the future

 14 is the very action that EPA is proposing with

 15 these rules.

 16 In short, proper regulation at the state

 17 level is a more effective vehicle for coal ash reg

 18 -- coal ash regulation than a one-size-fits-all

 19 national program. The nation's economy should not

 20 be made to pay for the mistakes at a single site.

 21 Thank you.

 22 MR. BEHAN: Thank you. 225.
 251

 1 SPEAKER: Greetings. My name is Gary

 2 Stuard. And I am the founder and executive

 3 director of the Interfaith Environmental Alliance,

 4 or IEA, an organization whose mission is to assist

 5 congregations in greening themselves and also to

 6 formate -- or create local alliances of faith

 7 communities throughout the state of Texas to

 8 address local environmental issues, as well as

 9 through non-partisan but political action advocate

 10 for progressive environmental policies at the

 11 state and national level.

 12 As an alliance of people of faith, IEA

 13 -- or the Interfaith Environmental Alliance -- is

 14 naturally concerned about truth, including

 15 scientific truth; the love of God, however we

 16 define god; and the love of neighbor; and the

 17 advancement of the common good. As people of

 18 faith, we accept the scientific evidence that

 19 shows conclusively that coal ash is highly toxic

 20 and hazardous to humans and ecosystems, as being

 21 shown by what has been happening to our water

 22 resources being contaminated with mercury, lead,
 252

 1 and other toxins. For example, the state of Texas

 2 has sixteen lakes heavily contaminated from coal

 3 waste. People's lives are being harmed, and that

 4 is a religious issue.

 5 Since all faith traditions stress that

 6 we cannot love God -- however we understand God --

 7 without loving and caring, protecting our

 8 neighbor, IEA urges EPA to quickly establish

 9 aggressively progressive regulations on coal ash.

 10 It's become clear that there's no such thing as

 11 clean coal energy and that for the sake of the

 12 Earth's ecosystems and the welfare of human

 13 communities, everything must be done at all levels

 14 to rapidly reduce and ultimately eliminate our

 15 nation's dependence on coal and other coal-based

 16 fuels.

 17 Increased coal waste disposal costs will

 18 give companies an incentive to move beyond the use

 19 of coal byproducts. IEA also encourages EPA to do

 20 what it can to have criminal investigations

 21 initiated and criminal prosecutions pursued

 22 against TCEQ, the Railroad -- Texas Railroad
 253

 1 Commission, Governor Rick Perry, energy

 2 corporations, and other governmental corporate

 3 bodies or individuals who have undermined,

 4 thwarted, or violated environmental laws here in

 5 the state of Texas, and who have criminally

 6 exposed Texas public to environmental risks that

 7 undermine public health.

 8 In religious tradition, we call that

 9 sin. According to all faith traditions, one

 10 cannot both serve -- love and serve God or the

 11 moral good and money or profit. As Jesus of

 12 Nazareth put it, you will either love the one and

 13 hate the other, or you will hate the one and love

 14 the other. Please remember, EPA, that

 15 environmental justice and the ecological common

 16 good in the eyes of God trumps always corporate

 17 profit. Thank you, and God bless.

 18 MR. BEHAN: Thank you. 226.

 19 SPEAKER: Good afternoon. My name is

 20 Lev Guter. And I am a concerned citizen coming to

 21 you today from Arkansas. I live in Little Rock.

 22 I just want to make three quick points. The first
 254

 1 one is to give some examples of contamination that

 2 is happening right now in Arkansas from coal ash.

 3 The second point I'd like to make is just to

 4 really touch on the regulatory state climate of

 5 what's the Arkansas Department of Environmental

 6 Quality, ADEQ -- sort of what their culture is

 7 when it comes to coal ash. And then the third

 8 point that I would like to make is to highlight

 9 one of the reasons why Subtitle C is a much better

 10 option than Subtitle D.

 11 So the contamination that's happening

 12 right now -- I'm sure you've heard it before

 13 today, this report cited -- but it's In Harm's

 14 Way, and it was done by the Environmental

 15 Integrity Project. And the first two cases are

 16 from Arkansas. The -- the first one is the

 17 Independence Coal Plant. And the contamination of

 18 the 34 monitoring wells have been documented for

 19 widespread groundwater contamination. And we're

 20 talking heavy metals, mercury. That's 34 wells.

 21 That's -- that's drinking wells that people are

 22 consuming every day.
 255

 1 And the second problematic coal ash site

 2 that was documented in the report is from Flint

 3 Creek. And that's another coal ash site where

 4 there has been demonstrated damage to groundwater

 5 360 feet away from the actual site. So this water

 6 is -- it's moving, and people are drinking it.

 7 Just quickly, the Arkansas Department of

 8 Environmental Quality follows, in general, the

 9 minimum standards that the federal regulations

 10 impose. There are really smart people,

 11 hardworking people at ADEQ, but we hear time and

 12 again, you know, the regulations aren't there. If

 13 you want us to have stricter regulations, change

 14 the regulations. Well, that's why we're here

 15 today.

 16 And the third point that I'd like to

 17 make is, this is an environmental justice issue.

 18 Because of Subtitle D, my understanding is that a

 19 large portion would be regulated by citizen suits.

 20 And the poor communities, a lot of them are

 21 communities of color, they don't have the

 22 resources to hire lawyers to enforce safe drinking
 256

 1 water. And that is something that they should be

 2 entitled to. They shouldn't have to fight for

 3 clean drinking water. That is something that the

 4 federal government should make sure all citizens

 5 have. Thank you.

 6 MR. BEHAN: Thank you. Number 82,

 7 Number 84, 227, 228. 228? 229. We're a little

 8 ahead of schedule, so I'm going to take some of

 9 the walk-ins right now. So that's the 200 series.

 10 Okay. What was the -- what number do you have,

 11 ma'am?

 12 SPEAKER: 82.

 13 SPEAKER: 108.

 14 MR. BEHAN: Okay. Go ahead, ma'am.

 15 SPEAKER: Okay. My name is Victoria

 16 Tamayo. And to all of my students, I'm Ms.

 17 Tamayo. Teaching in New Orleans is the most

 18 unique experience for me, and I absolutely love

 19 it. I adore my students. And my students and I

 20 share -- we share our lives together. And every

 21 day I see them, they just share more and more.

 22 When I became aware of the coal ash
 257

 1 issue and how close to our home it is, the most

 2 important thing to me is knowing that my students

 3 are at the very least environmentally safe and

 4 educated. Because sometimes when they go home,

 5 their homes are empty or not altogether and they

 6 need to know that the water they drink and the

 7 streets that they play on are safe for them.

 8 When my fourth graders ask me about

 9 their neighborhoods, they need to know they're

 10 safe and that the status -- their status as

 11 Louisiana residents and United States citizens

 12 grants them the right to know policymakers have

 13 their well-being in mind.

 14 This is about prevention, not about the

 15 gravity of change. The gravity lies with the lack

 16 of change. As a native of the most culturally

 17 rich and diverse city, New Orleans, I refuse to

 18 let myself or my students be environmental

 19 refugees again. Adopt Subtitle C. Thank you.

 20 MR. BEHAN: Thank you. 84.

 21 SPEAKER: Thank you for this opportunity

 22 to discuss. My name is James Hicks, Executive
 258

 1 Vice President of Research and Development of

 2 Ceratech, Incorporated. Ceratech provides cements

 3 made specifically from coal combustion products or

 4 CCPs. Ceratech supplies fly ash-based cements and

 5 products made from those cements to many

 6 municipalities, state departments of

 7 transportation, the federal government, and the

 8 U.S. military in stateside and theater of war

 9 zones for critical needed high-performance

 10 products.

 11 Ceratech will be put out of business if

 12 CCPs are classified as hazardous. Classifying

 13 CCPs as special will evoke the connotation of some

 14 variety of sort of hazardous or probably

 15 hazardous. Further, beneficial use of CCPs can be

 16 linked under EPA guidelines to any other

 17 classification of CCPs.

 18 I support coal ash disposal regulations

 19 that protect human health and the environment while

 20 encouraging greater recycling of fly ash and CCPs.

 21 These goals cannot be both accomplished if the

 22 Environmental Protection Agency designates coal
 259

 1 ash as hazardous or special waste.

 2 People do not want a material in their

 3 homes, schools, or neighborhoods if it is

 4 considered hazardous in a landfill. Businesses

 5 will not want to risk being sued for using a

 6 material that is considered hazardous in a

 7 landfill or risk losing the environmental benefits

 8 that come with recycling millions of tons of this

 9 material, including conserving landfill space and

 10 natural resources, as well as avoiding the

 11 emissions of millions of tons of greenhouse gases

 12 for manufacturing the materials that recycled coal

 13 ash replaces.

 14 There is no good reason for destroying

 15 coal ash recycling. Characteristic waste, which

 16 exhibit one or more of the characteristics defined

 17 in 40 CFR Subpart C, are ignitability,

 18 corrosivity, reactivity, and toxicity. Coal

 19 combustion products meet none of these category

 20 designations.

 21 Further, a solid waste as defined in

 22 261.2 is a hazardous waste if it exhibits any of
 260

 1 those characteristics. CCPs do not have any of

 2 those characteristics. The stigma associated with

 3 CCP if classified as any form of Subtitle C or

 4 special waste is untenable. Whether disposed or

 5 used, the fact that it could be either and the

 6 beneficially used CCR and the disposed CCR come from

 7 the same source can be shown to be linked under

 8 EPA guidelines. Your consideration to avoid

 9 reclassification of CCPs as any form of Subtitle C

 10 or special is appreciated.

 11 MR. BEHAN: Thank you. 227.

 12 SPEAKER: Hi, I'm Jeffrey Davis,

 13 environmental manager for NRG Energy,

 14 Incorporated. NRG owns and operates one of the

 15 country's largest power generation portfolios,

 16 including coal plants in Texas, Louisiana, New

 17 York, and Delaware. NRG supports the development

 18 of federal regulations for coal combustion

 19 residuals under RCRA's Subtitle D non-hazardous

 20 waste program. We believe that a non-hazardous

 21 program is the best path forward because it will

 22 enable EPA to establish a program that protects
 261

 1 the environment while not impacting beneficial use

 2 or the economy. NRG will provide written comments

 3 before the November 19th deadline. We support the

 4 comments made by the Texas Coal Combustion

 5 Products Coalition and the Utilities Solid Waste

 6 Activities Group.

 7 Texas has a strong solid waste disposal

 8 program, and it has successfully managed disposal

 9 of CCRs under this program for decades. The

 10 program in Texas provides the regulatory oversight

 11 necessary to ensure that management of CCRs is

 12 protective of human health and environment. NRG

 13 requests that EPA work with the states and develop

 14 a program that recognizes the role of each state

 15 to develop their own regulatory programs to ensure

 16 compliance with the newly adopted federal

 17 criteria.

 18 Most of the coal combustion byproducts

 19 produced at our Texas plants are beneficially

 20 used, primarily in the manufacture of cement

 21 products. EPA has publicly stated that a

 22 hazardous program would result in an increase in
 262

 1 recycling. We believe that a federal program that

 2 labeled a product that had been safely used for

 3 decades as hazardous will have the opposite effect

 4 and will severely impact our recycling efforts

 5 because of the stigma associated with a hazardous

 6 designation.

 7 Our coal ash users and recyclers have

 8 indicated that any hazardous waste label on coal

 9 ash could end beneficial use practices due to --

 10 to liability and marketing concerns. This would

 11 result in greater volumes of coal ash generated at

 12 the NRG plants having to be managed and

 13 unnecessarily fill up landfill space rather than

 14 sold for beneficial use. In addition, the cement

 15 industry will have to make up for the loss of

 16 recycled coal ash resulting in a net increase of

 17 carbon dioxide emissions.

 18 In closing, NRG supports the regulations

 19 of CCRs as a non-hazardous waste. There is simply

 20 no reason for EPA to pursue a hazardous waste

 21 regulation when a non-hazardous program offers the

 22 same level of protection without crippling
 263

 1 beneficial use and imposing unnecessary cost on

 2 electric power sector. I thank the EPA for the

 3 opportunity to present these comments.

 4 MR. BEHAN: Thank you. 229.

 5 SPEAKER: Good afternoon. My name is

 6 Shane Strelsky. And I'm a site manager for Harsco

 7 Minerals, a division of the Harsco Corporation. I

 8 work at Harsco's Rockdale, Texas location, and I

 9 manage four regional plants located in Texas,

 10 Kansas, and Missouri. I have been working in the

 11 boiler slag processing field for 20 years. The

 12 plants I manage employ 39 workers, many of them

 13 have been working in the boiler slag processing

 14 industry for 10 to 39 years.

 15 We produce mainly abrasives and granules

 16 for roofing shingles from boiler slag. Boiler

 17 slag is one of the listed coal combustion

 18 byproducts included in this proposed regulation.

 19 Harsco takes employees' health safety

 20 very seriously. We have participated in

 21 industrial hygiene surveys, we conduct -- we

 22 conduct regular safety meetings. And safety is an
 264

 1 important part of how we do our business every

 2 day. Environmental permit compliance is also an

 3 important part of the way we conduct our business.

 4 In 20 years of operations, I do not know of any

 5 environmental issues caused by the boiler slag

 6 process by my facilities.

 7 I am in support of regulating boiler

 8 slag under Subtitle D. Some facts that

 9 demonstrate that there is no reasonable basis for

 10 subjecting boiler slag to regulation under

 11 Subtitle C are as follows: When extremely hot

 12 molten coal ash is quenched with cold water, the

 13 coal ash is vitrified and becomes a solid glassy

 14 matrix known boiler slag. Because boiler slag is

 15 vitrified, it is a very durable and

 16 environmentally stable material that effectively

 17 immobilizes its chemical constituents.

 18 Historically, boiler slag has always

 19 passed the TLC -- TCLP testing and has never

 20 exhibited any hazardous waste characteristics. I

 21 am not aware of any environmental issues brought

 22 forth by any of my customers. Any and all TCLP
 265

 1 testing requested by any of my customers has never

 2 indicated any issues. Boiler slag makes up only 2

 3 percent of total coal combustion byproducts, and

 4 98 percent of it is recycled into valuable

 5 reusable products. Boiler slag has been

 6 beneficially used since the 1930's as an abrasive.

 7 Boiler slag is not commonly stored in surface

 8 impoundments. Harsco does not store any of our

 9 products, raw or processed, in any surface

 10 impoundments.

 11 Regulating boiler slag destined for

 12 disposal as a special waste under Subtitle C would

 13 unfairly stigmatize beneficially reused boiler

 14 slag that I have been processing for many years.

 15 My customers will be confused and concerned about

 16 purchasing products that are seen to be

 17 essentially the same as Subtitle C waste.

 18 I recognize the need for proper and

 19 environmentally sound standards for regulating the

 20 2 percent of boiler slag that is discarded rather

 21 than beneficially reuse. However, I feel that the

 22 associated stigma that will be associated with
 266

 1 Subtitle C will adversely impact my business. I

 2 am for Subtitle D. Thank you.

 3 MR. BEHAN: Thank you. 108.

 4 SPEAKER: Good afternoon. My name is

 5 Carol Okstel. And I'm a supporter of

 6 Earthjustice, the Sierra Club, and Defenders of

 7 Wildlife. I want to thank you for holding these

 8 hearings and for your full attention.

 9 The EPA already knows, as does the coal

 10 electric industry, that coal ash is an awful

 11 arsenal of toxic pollutants that are implicated in

 12 cancers, organ disease, respiratory illness,

 13 neurological damage, and reproductive and

 14 developmental problems. The EPA already knows, as

 15 does the coal electric industry, that the toxic

 16 contaminates in billions upon billions of gallons

 17 of coal ash in dump sites and waste ponds across

 18 the country have wrecked poisonous devastation

 19 upon the environment, upon ecosystems, marine

 20 life, wildlife, the air we breathe, our sources of

 21 drinking water, and the physical and economic

 22 health of human beings and the communities
 267

 1 afflicted. Yet the coal electric industry in an

 2 amazing theater of the absurd is pressuring and

 3 maneuvering the EPA to accept and abet some of the

 4 indust -- industry's most unconscionable practices

 5 and assertions of coal ash's harmlessness.

 6 But the industry does concede if coal

 7 ash actually must be regulated, it should

 8 certainly fall under RCRA's Subtitle D, the

 9 non-hazardous designation, or in other words, it's

 10 nothing more harmful than coffee grounds. Let's

 11 call this what it really is, criminal deceit and

 12 recklessness in the name of profit, responsible

 13 for a swath of sickness, death, and ruination

 14 across the United States.

 15 Well, in the name of all on the planet

 16 that has been afflicted by this scourge and

 17 through the power of genuine human and divine

 18 justice, if ever an industry and its toxic product

 19 residual needed stringent regulation and the EPA

 20 needed to live up to its mandate, coal ash is it.

 21 Nothing short of Subtitle C is

 22 acceptable with the designation of special waste,
 268

 1 the regulation's strongest protections, federally

 2 enforceable safeguards, and the phaseout of all

 3 perilous waste ponds. Anything less would be

 4 tantamount to federally sanctioned genocide across

 5 species because we all know that coal ash sickens,

 6 devastates, and kills. Thank you again for your

 7 attention.

 8 MR. BEHAN: Thank you. Number 87, 88,

 9 89, and 90, could you come forward. Number 230,

 10 Number 87, if you could come to the podium.

 11 SPEAKER: My name is Bruce Haslerud. I

 12 am one of the employee owners of Black Diamond

 13 Granules, a company located in St. Paul,

 14 Minnesota, which is about 1,000 miles north of

 15 here. Our company processes boiler slag granules

 16 into roofing granules and abrasives. As an owner

 17 of a profitable, surviving Minnesota business, I

 18 came here to ask EPA to consider scientific data,

 19 as well as the practical implications of

 20 regulating boiler slag as a Subtitle C hazardous

 21 waste.

 22 I believe that as a matter of sound
 269

 1 science and avoiding a potentially devastating

 2 economic impact that EPA determine coal slag to be

 3 regulated as a Subtitle D material. Although we

 4 are a small company, we have recycled over 3 point

 5 million -- 3.1 million tons of boiler slag

 6 granules into useable products during our

 7 existence.

 8 At EPA's Arlington, Virginia public

 9 meeting on August 30th, there were several

 10 allegations made by a competitor selling a

 11 competing product that unencapsulated boiler slag

 12 is a danger and threat to human health. It was

 13 also alleged that coal slag abrasives release

 14 hazardous airborne pollutants.

 15 I am compelled to share with you and for

 16 the public record the results of an independent,

 17 third-party laboratory analysis on my slag fines.

 18 The study was conducted by Pace Analytical, and it

 19 analyzed particulate fines from my plant, which

 20 are even finer than the slag granule residue from

 21 an abrasive blasting job. The data show that any

 22 metals in the slag granules maintain their
 270

 1 encapsulated status and are not harmful. The data

 2 show that the particulate fines are similar in

 3 nature to soil in your backyard. I strongly

 4 encourage EPA to review this laboratory study and

 5 technical data.

 6 As you may know, 80 percent of all

 7 shingles contain boiler slag. If EPA declares

 8 boiler slag to be a special waste under Subtitle C

 9 because -- besides the cost of roof repairs going

 10 up, homeowner's insurance would also increase.

 11 This is because of the stigma of Subtitle C

 12 classification.

 13 Finally, the State of Minnesota

 14 currently encourages recycling of old shingles by

 15 allowing asphalt for state roadways to include a

 16 percentage of recycled shingles, but Minnesota

 17 does not permit hazardous waste to be recycled.

 18 If boiler slag is declared a special waste under

 19 Subtitle C, EPA will be gutting a program that

 20 allows for 100 percent recycling, undercutting its

 21 own mission to reduce, reuse, recycle. Thank you

 22 for your consideration.
 271

 1 MR. BEHAN: Thank you. Number 88.

 2 SPEAKER: Hello, my name is Devin

 3 Martin, from Lafayette, Louisiana. I'm here

 4 representing myself, the people of the great state

 5 of Louisiana, as well as the Sierra Club Delta

 6 Chapter. Thank you for the opportunity to speak

 7 today.

 8 The Sierra Club Delta Chapter is made up

 9 of over 3,000 members and thousands of more

 10 volunteers, some of whom you've already heard from

 11 today who are from places as far as Shreveport and

 12 the Kisatchie Forest, all the way down to the

 13 mouth of the Mississippi River in Venice.

 14 Like Texas, the people of Louisiana are

 15 proud. We're proud of our history. We're proud

 16 of our unique and diverse heritage. And we're

 17 proud of our environment that has helped to shape

 18 who we are as a people. We have pride in the idea

 19 of being a sportsman's paradise.

 20 And one of the reasons I'm urging you

 21 today to consider coal ash as a Subtitle C

 22 hazardous material is because we're afraid that
 272

 1 heavy metals from coal ash might leach into our

 2 environments and get into the wildlife and

 3 fisheries that we are so dependent upon and proud

 4 of as part of who we are as Louisiana citizens.

 5 Because of bio accumulation, any heavy metals that

 6 escape into the environment can be concentrated in

 7 the body of a fish or plants that people use and

 8 consume, especially hunters and fishers. So we

 9 need to be extra careful when dealing with an area

 10 like Louisiana where so many people are hunters

 11 and fishers.

 12 Also, you know, we're not proud of

 13 everything that we have in Louisiana. We're not

 14 proud of being an environmental sacrifice zone for

 15 energy companies and being a resource colony for

 16 other areas. We're not proud of the failure of

 17 our state government to protect our own people and

 18 our people's interest and the interest of future

 19 generations. And we're not proud of the lies that

 20 are constantly told to us by corporate executives

 21 and politicians. Lies like I'm hearing today.

 22 Coal ash is toxic. There is no other --
 273

 1 there's no getting around it. Coal is dirty.

 2 There is no clean coal. And there is no clean

 3 coal ash. Those who would try to say that we

 4 shouldn't regulate coal as a hazardous material

 5 because of an -- because of economic reasons or

 6 because of a stigma that might come with it, shame

 7 on you. Shame on you.

 8 Coal is a hazardous material. The

 9 stigma that goes with it is deserved, so you need

 10 to live with this. You need to live with the

 11 realization that we can't always have things both

 12 ways. These companies who are afraid of the

 13 stigma are trying to keep consumers from the

 14 truth, from learning that what is in their

 15 products may be harmful. So I urge the EPA today

 16 to except and recommend using Subtitle C as

 17 regulating coal ash as a hazardous material.

 18 Thank you.

 19 MR. BEHAN: Thank you. Number 89.

 20 SPEAKER: Good afternoon. My name is

 21 Terry Peterson. I'm the president of Boral

 22 Material Technologies, a small ash marketing
 274

 1 company based out of Roswell, Georgia. I've been

 2 in the CCP industry since 1983. And during my

 3 career, I've been involved with all facets of CCP

 4 management. Those include beneficial use,

 5 primarily. I've also been involved in landfill

 6 design and construction. An important part of our

 7 business has been research and development and

 8 looking for opportunities for additional

 9 beneficial uses of CCPs. And also involved in

 10 engineering of ash handling systems. Today, I'd

 11 like to focus my comments on the stigma associated

 12 with Subtitle C designation for CCRs. Excuse me.

 13 Since 1983, I've observed and

 14 experienced the challenges associated with

 15 matching CCR production to CCP demand. Generally

 16 speaking, the imbalance that in -- inevitably

 17 occurs between the two results in excess CCPs

 18 being placed in landfills. Effectively, this

 19 excess fly ash disposed has the exact same

 20 characteristics as the fly ash being sold to end

 21 users for beneficial use. Designating fly ash

 22 being sold or beneficially used as acceptable and
 275

 1 then classifying that same material as hazardous

 2 waste when land-filled under Subtitle C confuses

 3 end users since the fly ash is the same

 4 regardless. This confusion leads to concerns

 5 around future liability for our end user

 6 customers, as well as CCP producers. And in many

 7 cases, eliminates their desire to purchase or sell

 8 CCPs for beneficial use.

 9 Another significant challenge to the CCP

 10 industry resulting from the stigma of Subtitle C

 11 is tracting -- is attracting private investment to

 12 develop technologies or products that will promote

 13 beneficial use of CCPs. Even if every cubic yard

 14 of concrete in the U.S. contains optimized volumes

 15 of CCPs, there would still be a substantial amount

 16 of CCRs remaining available. New technologies and

 17 products will be critical to continue to expand

 18 beneficial uses beyond conquering (sic ?). Investors will

 19 not move forward if there are any concern as to

 20 the future classification of CCPs under Subtitle

 21 C.

 22 The overall impact of Subtitle C could
 276

 1 effectively reverse the successful beneficial uses

 2 currently in place, as well as eliminate the

 3 future investment required to sustain beneficial

 4 uses. This reversal will eliminate the

 5 substantial benefit of avoiding 15 million tons of

 6 annual CO2 emissions, require extraction of

 7 non-renewable resources to fill the void left when

 8 users not -- opt not to use CCPs and obviously

 9 consume a large amount of landfill space.

 10 We are convinced that the EPA can both

 11 fulfill their obligation to protect citizens by

 12 reinstating Subtitle D designation for CCRs while

 13 also promoting responsible beneficial uses, which

 14 will show us -- allow us to maintain our natural

 15 resources, as well as the clean air benefit

 16 associated with CCP reuse. Thank you very much.

 17 MR. BEHAN: Thank you. Number 90.

 18 SPEAKER: Good afternoon. My name is

 19 James Birkhead. I'm the environmental supervisor

 20 at Luminant's Three Oaks Mines, which are located

 21 in Lee and Bastrop Counties of Texas. I

 22 appreciate the opportunity to provide my statement
 277

 1 today.

 2 Across Luminant's mines, coal combustion

 3 residuals play a very important role in our

 4 reclamation practices. As a standard practice,

 5 they have been effectively used for mine fill and

 6 contouring across the state for many years with no

 7 proven adverse environmental impacts. Even before

 8 federal and state laws were written, Luminant

 9 demonstrated a strong commitment to responsible

 10 land reclamation and management. We ensure the

 11 quality of our reclaimed land, its groundwater,

 12 and soil through rigorous and extensive

 13 monitoring. We have never experienced any issues

 14 with our groundwater from using CCRs for mine fill

 15 and contouring.

 16 We take great pride in our reclamation

 17 program, and for good reason. We've received

 18 nearly 90 awards for reclamation excellence

 19 throughout the years. Most notably, in 2009, we

 20 received the U.S. Department of the Interior

 21 Office of Surface Mining Director's Award. And

 22 this was for an unprecedented fifth time. This
 278

 1 was also the second consecutive year Luminant

 2 received OSM's highest distinction.

 3 The primary goal of our reclamation

 4 program is to return mine lands to a productive

 5 post-mine use and to achieve full release of all

 6 regulatory obligations. To that end, we've

 7 reclaimed more than 66,000 acres, and we've

 8 secured the successful release of bond liability

 9 on over 29,000 acres. Our attention to the

 10 development of quality post-mine soil is the

 11 cornerstone of our successful mine reclamation

 12 program.

 13 We've also significantly increased prime

 14 farmland in our post-mine soils. Prime farmland

 15 soils are those that have been -- that have the

 16 best combination of physical and chemical

 17 characteristics for producing food, feed, forage,

 18 fiber and oilseed crops. Our land is known for

 19 its quality and it's in high demand when it's

 20 released for sale back to the public. Using CCRs

 21 as mine fill and for contouring has contributed to

 22 this success.
 279

 1 In summary, Luminant, in addition to

 2 over 200 members of the U.S. Congress, 43 states,

 3 and numerous federal agencies strongly oppose the

 4 regulation of CCRs as a hazardous material under

 5 RCRA Subtitle C hazardous waste program. And we

 6 recommend that the EPA continue to allow states to

 7 run their own program. Thank you for this

 8 opportunity to comment.

 9 MR. BEHAN: Thank you. 230.

 10 SPEAKER: Good afternoon. My name is

 11 Jeff Haseltine. I live in Abilene, a West Texas

 12 city of -- of over 100,000 people. I'm a

 13 university administrator and a member of a very

 14 conservative local church.

 15 This past Sunday, a university colleague

 16 came up to me and said, well, how's Tenaska doing?

 17 Have they gone away yet? He was referring to the

 18 Nebraska energy company, Tenaska, a huge privately

 19 owned energy company, which having made lots of

 20 money in the natural gas energy business, is now

 21 trying to get into the coal burning business.

 22 This colleague knows that I'm one of the many
 280

 1 local people trying to stop Tenaska from building

 2 a coal-fired plant in our area. I told him, no,

 3 Tenaska hasn't gone away. They're still scouring

 4 the region, looking for water after Abilene told

 5 them, we weren't going to give it to them.

 6 My colleague said simply, man needs to

 7 learn to stop fouling his own nest. Even the

 8 birds know better than to do that. And that made

 9 me think. That's absolutely true. We need to

 10 stop fouling our own nest. But the problem with

 11 our local issue, the Tenaska plant will crank out

 12 27 truckloads of ash per day, every day, over its

 13 50-year lifespan. The problem is that Tenaska is

 14 not going to foul their own nest. Their nest is

 15 Omaha, Nebraska, over 600 miles away. The problem

 16 isn't that man needs to learn to stop fouling his

 17 own nest, it's that man needs to be prevented from

 18 fouling somebody else's nest.

 19 Now, we've asked our own state agency,

 20 the Texas Commission on Environmental Quality, to

 21 do just that. But the TCEQ has a history of

 22 simply rubber stamping whatever these huge energy
 281

 1 companies plop down on their desk. The result is

 2 that the local people, trying to maintain the

 3 quality of our own area nest, have no effective

 4 means of preventing some giant corporate Tenaska

 5 bird from flying in on the wings of three and a

 6 half billion dollars of borrowed money and fouling

 7 our nest for half a century.

 8 That's why even reluctantly from the

 9 standpoint of many conservatives we ask the EPA to

 10 step in on a federal level and to enact some tough

 11 laws regarding coal ash. If you can help us shoo

 12 away the big birds, that would be wonderful. But

 13 at the very least, we ask you to make them clean

 14 up after themselves. Enact Subtitle C, please.

 15 Thank you.

 16 MR. BEHAN: Thank you. Numbers 92, 93,

 17 94. If 91 has arrived, you can come up, too.

 18 231, 232, come on up. Number 92. Go ahead when

 19 you're ready.

 20 SPEAKER: Good afternoon. My name is

 21 Matthew Smith. And I'm currently employed by

 22 Separation Technologies, a company which processes
 282

 1 and markets fly ash.

 2 We've heard some great arguments today

 3 for both Subtitle C and Subtitle D. After hearing

 4 these arguments, I formed the opinion that we

 5 could distill most of these discussions down to

 6 one question. Which is better for the human

 7 health, environment, and the economy, placing CCRs

 8 in landfills or encapsulating them in concrete.

 9 I believe encapsulation is far better,

 10 and also believe Subtitle D supports this option

 11 while Subtitle -- Subtitle E -- C eliminates it.

 12 I support cleaner production of electricity, but

 13 until that becomes a reality, we have to do

 14 something with the CCRs. Recycling them is the

 15 best option. That's why I support Subtitle D.

 16 Thank you.

 17 MR. BEHAN: Thank you. Number 93.

 18 SPEAKER: Good afternoon. I'm Joey

 19 Craft. I'm also with Separation Technologies from

 20 Mississippi. I also oversee all safety procedures

 21 and assure that they are followed according to

 22 OSHA and EPA standards.
 283

 1 Our company handles the process of fly

 2 ash that is supplied to concrete companies

 3 throughout Mississippi, Alabama, and Louisiana.

 4 Our ash has helped in the rebuilding process of

 5 all -- of some bridges and businesses after

 6 Hurricane Katrina five years ago. That's why I'm

 7 opposed to the Subtitle C regulation on fly ash

 8 because of the impact that it would take on our

 9 economy. There is a lot of people that would work

 10 in this field and industry that could lose a job

 11 and not be able to support their families. As a

 12 family man, I -- I need my job to provide for my

 13 wife and my -- my daughters.

 14 So with that being said, I'm here to

 15 protect my job, my family, my coworkers, and my

 16 company from any regulations that would cost us

 17 our business. I believe we need to pay more

 18 attention to the oil spill in -- that happened in

 19 the coast than -- than the problems that you would

 20 think fly ash is doing to our environment right

 21 now.

 22 So in closing, my question to everyone
 284

 1 here today, would we be here having these meetings

 2 if the Tennessee or Oklahoma incident ever

 3 occurred? Thank you.

 4 MR. BEHAN: Thank you. Number 94.

 5 SPEAKER: I'd like to thank you all for

 6 the opportunity to speak today and for giving the

 7 public a chance to express their concerns and

 8 their opinions on the issues concerning fly ash.

 9 My name is Frank Cooper. I'm also with Separation

 10 Technologies. Our company is in the business of

 11 recycling fly ash. We have a process of

 12 separation that separates the carbon particles out

 13 of the ash. We're able to take these carbon

 14 particles, send them back to the power plant to be

 15 recycled through the burner once again. The

 16 mineral particles, as we call it, are used in

 17 block roadwork, bridgework -- a lot of other

 18 beneficial things that they're used for to keep

 19 them out of landfills.

 20 Unfortunately, I know with every bad

 21 thing, something good can come out of it; but

 22 also, with every good thing, something bad could
 285

 1 come out of it. If currently it's labeled under

 2 Subtitle C, then a company like ours would go

 3 away, and what you'd be left with is more and more

 4 material ending up in landfills instead of being

 5 recycled. And eventually, power companies,

 6 they're still going to burn coal to produce power

 7 as long as we still turn these lights on and we

 8 still use this AC system. So what's going to

 9 happen is you're going to have more material being

 10 produced with no place to go.

 11 And people talk about landfills.

 12 Eventually, power companies will have to scout new

 13 locations for landfills. And if we don't have a

 14 plan in effect for that, then eventually one day,

 15 all of us may be living next to a landfill. So I

 16 vote for Subtitle D, please. Thank you.

 17 MR. BEHAN: Thank you. 231.

 18 SPEAKER: Good afternoon. It's been a

 19 long hearing, and I appreciate your -- your

 20 continued attention. My name is Jim Cook. And I

 21 live in Abilene, Texas, which is 40 miles from the

 22 proposed Tenaska coal-fired electric generation
 286

 1 plant. And I thank you for listening to me. I

 2 support Subtitle C proposal.

 3 Coal ash is toxic and hazardous. The

 4 externalities of coal-fired electric generation

 5 must be considered. Action like the one being

 6 considered here today is much too important to be

 7 based solely on economic issues. It's unfortunate

 8 that a threat like a coal-fired plant in your back

 9 yard must be personal in order to motivate us to

 10 act.

 11 I speak for myself and those who have

 12 not yet discovered that coal ash is a personal

 13 threat to them also. Clean coal is a myth. Clean

 14 renewable energy is a reality. If the coal

 15 industry cannot adapt to the proposed regulation,

 16 then perhaps the coal industry should fail.

 17 Renewable energy will succeed no matter what the

 18 level of regulation.

 19 Coal burning is bad for the environment

 20 and, therefore, bad for people. Currently, it

 21 seems to be good for the industry. What's the

 22 name of that company? Make Money -- Making Money
 287

 1 Having Fun. It's our health being sold for their

 2 wealth.

 3 I encourage the EPA to fulfill its

 4 purpose of protecting the environment and the

 5 lives of the citizens that depend on the clean

 6 healthy surroundings. Push back on the industry

 7 on my behalf. Our future must be clean, healthy,

 8 and sustainable. Please assume the responsibility

 9 to regulate coal ash and adopt Subtitle C.

 10 If I may add a comment, as an

 11 environmental science teacher, I take issue with

 12 using the term "recycling" in reference to coal

 13 ash. This is greenwashing at its best. The term

 14 suggests sustainable activities. The term

 15 "recycling" is being co-opted to refer to further

 16 distribution of a material which degrades the air,

 17 the water, and human health. Thank you.

 18 MR. BEHAN: Thank you.

 19 SPEAKER: Hello, my name is Bonnie Mai.

 20 And I'm a student from Hammond, Louisiana. And

 21 I'm concerned about coal ash pollution and the

 22 health of the environment and people today, as
 288

 1 well as generations from now. A lot of my

 2 professors actually encouraged me to come here

 3 today instead of attending their classes because

 4 they said that this coal ash hearing is far more

 5 important than their classes. I speak for them,

 6 as well as many other students who could not be

 7 here today. I don't know how many I speak --

 8 people I speak for, but I know that personally, a

 9 lot of people have come up to me and told me to

 10 speak for them and their children and all the

 11 other pairs of lungs that couldn't be here today.

 12 So I'm speaking for them.

 13 And we know that the bottom line for

 14 industry is money. I know that many people in the

 15 coal industry are worried about money and jobs.

 16 But we, the people, are already paying the true

 17 cost of coal through our health care costs, our

 18 water treatment costs, and cleaning up major

 19 environmental and health disasters, such as the

 20 Tennessee coal spill. I think that many people

 21 came here today and many people who are unable to

 22 -- to come here today are ready to face the
 289

 1 reality and show what the true cost of coal is and

 2 hope that we may gradually transition to using

 3 renewable, sustainable, clean energy.

 4 I support Option C because honestly I

 5 don't trust the states to regulate coal ash safely

 6 and to take their citizens' health into

 7 consideration. Option D would not change

 8 anything. Not regulating this dangerous substance

 9 will cost us more in the long run.

 10 In closing, I would like to say that I

 11 support the Seven Generation Law of Sustainability

 12 that the Iroquois Native Americans use in all of

 13 their decision-making. When you make laws,

 14 consider how not -- how it won't just benefit you,

 15 but also the next seven generations. I urge you

 16 to consider what is best for humanity today, as

 17 well as the next seven generations. And thank you

 18 for allowing us to comment on this crucial issue.

 19 Thank you.

 20 MR. BEHAN: Thank you. 233, 234, 235,

 21 236, 237, 238, 239, 240, 241, 242, 243, 244, 245,

 22 246, 247. Go ahead.
 290

 1 SPEAKER: My name is Lily Stagg. I'm

 2 from Lafayette, Louisiana. I'm a member of the

 3 Sierra Club. I'd like to start off by saying that

 4 I'm hugely honored to have the opportunity to

 5 speak for the concerned citizens of Louisiana.

 6 As Americans, we have been blessed with

 7 both beautiful, natural surroundings, including

 8 abundant natural resources, and a thriving

 9 industrial economy. However, to whom much is

 10 given much is expected. We have the

 11 responsibility of being stewards of our earth, and

 12 we must keep this in mind when we take advantage

 13 of these resources.

 14 Unfortunately, too often big industries

 15 shirk their responsibilities in order to make the

 16 largest possible profit, as we've seen in the BP

 17 oil spill, Tennessee coal ash spill, and many

 18 other man-made disasters throughout American

 19 history.

 20 Industry's blatant disregard for

 21 environmental and human well-being can also be

 22 seen less dramatically in the improper disposal of
 291

 1 coal ash waste. Fly ash is carelessly dumped into

 2 unlined landfills where it is leached into the

 3 groundwater supply and also carried with the wind,

 4 polluting the air we breathe.

 5 The harmful minerals found in coal ash

 6 cause cancer, birth defects, nervous and

 7 reproductive system disorders, and countless other

 8 serious health complications. Those opposed to

 9 regulations and reform argue that it will cost too

 10 much to take the steps necessary to ensure the

 11 safety of our people and our environment.

 12 However, we say that no amount of money is worth

 13 even one human life, and if we destroy our planet

 14 we cannot buy a new one.

 15 Another important aspect less considered

 16 is our global standing. We pride ourselves in

 17 being one of the most advanced nations in the

 18 world, yet people living in the area surrounding

 19 coal ash dumps do not even have access to one of

 20 life's most basic requirements: Clean water.

 21 This is not acceptable.

 22 The current system of coal ash waste is
 292

 1 not working. The regulations imposed by the

 2 states are weak and fail to protect both mankind

 3 and the environment. We demand clean air. We

 4 demand clean water. Please don't let us down.

 5 Thank you.

 6 MR. BEHAN: Thank you.

 7 SPEAKER: Thank you to everyone who

 8 worked to make this hearing possible, and I thank

 9 you for the opportunity to voice my concerns. I'm

 10 Karen Keller, of Dallas, Texas, and I'm testifying

 11 as a public citizen.

 12 Various types of pollution are major

 13 contributors to my medical problems. Since coal

 14 ash contains many hazardous chemicals, I plead

 15 with the people of the EPA to put strict

 16 regulations on disposal of coal ash.

 17 There is a cumulative effect from the

 18 exposure to all toxins in our environment that has

 19 caused my health to deteriorate to the point where

 20 I'm not able to work.

 21 My concerns about burning coal for power

 22 and its impact on the environment have come about
 293

 1 through my long battle with some unusual health

 2 problems. After years of suffering from a

 3 worsening fatigue, seasonal sinus infections and a

 4 decline in mental ability, I was finally diagnosed

 5 with toxic metal poisoning.

 6 People are generally treated according

 7 to their symptoms, but often doctors don't

 8 recognize that toxins are causing the problem, and

 9 they are misdiagnosed and don't receive adequate

 10 treatment.

 11 Even though my reactions are infrequent

 12 to allergens these days, they occur spontaneously.

 13 I am still sensitive to products that are commonly

 14 used when I am out in public or I commonly am

 15 exposed to them. This makes me unstable and

 16 uncertain about committing to full-time

 17 employment.

 18 My toxic metal test revealed elevated

 19 levels of many of the chemicals that are found in

 20 coal ash, and a filter is recommended for removing

 21 these impurities from my drinking water, and it's

 22 essential to detoxification. But there are many
 294

 1 people who can't afford this expensive equipment.

 2 My research revealed that high levels of

 3 these toxins are not adequately filtered from

 4 bottled water, which many drink, and I have

 5 concerns about children whose bodies are in

 6 developmental stages. Hot water opens the pores,

 7 causing us to absorb more toxins in our skin

 8 during showers. Coal ash contaminants put all of

 9 us at risk, creating a burden on our society in

 10 many ways.

 11 For 20 years, I have diligently searched

 12 for solutions to my health problems. It has cost

 13 me thousands of dollars from myself and insurance

 14 companies. Toxic chemicals are silent killers.

 15 Many people suffer from the effects and are

 16 treated with drugs that add more toxins to their

 17 systems.

 18 Technology cannot eliminate all of these

 19 toxins generated in coal production, and the

 20 amount of exposure puts us all at risk for health

 21 problems. I urge adopting the Subtitle C to

 22 regulate coal ash as a hazardous waste. Thank
 295

 1 you.

 2 MR. BEHAN: Thank you.

 3 SPEAKER: I want to thank you for

 4 listening to my comments today. I am Charles

 5 Henderson, managing executive of the coal and ash

 6 operations group for Ameren Energy Fuels and

 7 Services, known as Ameren. We are an

 8 investor-owned utility based in St. Louis,

 9 Missouri, that operates 11 coal-fired plants.

 10 Ameren and our 2.4 million electric

 11 customers will be directly impacted by a final

 12 coal combustion residuals rule. I have direct

 13 responsibility and knowledge and experience with

 14 beneficial use and management of CCP materials.

 15 Over the past ten years, Ameren has

 16 developed a very robust CCP management and

 17 beneficial use program. Our CCP beneficial use

 18 program has been impacted recently by not only the

 19 poor state of the economy but also by the issuance

 20 of the EPA's proposed rule seeking to regulate

 21 CCRs.

 22 We have intentionally delayed a
 296

 1 multi-year beneficial use project due to the

 2 regulatory uncertainty created by the EPA's

 3 proposed rule potentially labeling CCRs as a

 4 hazardous waste. This project would have created

 5 much-needed construction jobs in Missouri this

 6 year, right now, provide long-term benefits to the

 7 local economy during the construction phase and

 8 long-term benefits to the project development due

 9 to the cost effectiveness of utilizing CCP

 10 materials.

 11 Sadly, none of these benefits are being

 12 realized, nor may ever be realized, as the result

 13 of CCRs being labeled potentially as hazardous

 14 materials, and the liability concerns already

 15 created as a result of the EPA's proposed rule.

 16 There is stigma, and the stigma is real and

 17 already present.

 18 I want to strongly state our opposition

 19 to the Subtitle C option. Regulating CCPs under

 20 RCRA's hazardous waste program is simply

 21 regulatory overkill that would severely cripple

 22 the CCP beneficial use industry and unnecessarily
 297

 1 raise the cost of power to our electric customers.

 2 Significant government research and

 3 demonstrations have supported CCP beneficial use

 4 recycling for many years. Please reconsider the

 5 effort to regulate CCPs under RCRA Subtitle C.

 6 Instead, RCRA Subitle D approach will accomplish

 7 everything essentially necessary to properly

 8 manage CCPs when storing, recycle, beneficially

 9 use, or dispose.

 10 Even the EPA has stated that there is no

 11 significant difference in the level of

 12 environmental protection between the proposed

 13 Subtitle D non-hazardous waste approach and its

 14 proposed Subtitle C hazardous waste approach.

 15 There is just no sound reason to pursue the

 16 Subtitle C approach when Subtitle D options offer

 17 the same degree of protection without the

 18 independent risk it burdens the economy, jobs, and

 19 electric customers.

 20 A Subtitle D approach is protective of

 21 human health and the environment and is clearly

 22 the correct regulatory approach. Thank you.
 298

 1 MR. BEHAN: Thank you.

 2 SPEAKER: Good afternoon. My name is

 3 Bob Franklin. I'm a professor of American

 4 government at Collin College in Plano, and a

 5 resident of Dallas.

 6 I'm not here to discuss the science, the

 7 chemistry, the health aspects. I think that's

 8 been pretty eloquently laid out for you. I know

 9 that your agency is charged with collecting all

 10 that information, and I know that a lot of the

 11 people that testified here have provided you with

 12 a lot of that information.

 13 I am here more to look at the political

 14 considerations of Subtitle C and Subtitle D. I

 15 understand the Administrative Procedures Act,

 16 which is the act that you are under, and the

 17 reason for this hearing.

 18 I understand that you are charged with

 19 coming up with a common-sense solution to a

 20 problem that takes into account everybody's

 21 position, business, private enterprise,

 22 environmentalists. You have to come up with
 299

 1 middle ground that satisfies everybody, and I know

 2 how tough that is.

 3 You are here to consider all points of

 4 view. There have been a lot of businesses that

 5 have been here, and, understandably, they are

 6 arguing to protect their interests. That's

 7 understood. We need you to consider all points of

 8 view.

 9 Subtitle C seems to be the common-sense

 10 approach to a serious problem. The opposition to

 11 Subtitle C seems to be an accusation that the EPA

 12 cannot come up with a common-sense solution to

 13 something. I don't know about you but I would

 14 feel pretty insulted by that. I think that you

 15 have the ability, you've got the expertise, to

 16 develop a common-sense solution to this problem,

 17 and I think you have done that with Subtitle C.

 18 The anti-regulatory position claims that

 19 it has the best interests of people at heart. We

 20 know some of those companies and other industries

 21 from the past, names like Enron and BP and Lehman

 22 Brothers, all of Wall Street and the banking
 300

 1 industry. It's pretty clear that these industries

 2 need some sort of regulation; otherwise, they're

 3 going to go off and protect their own interests.

 4 I've heard a lot of talk about stigma

 5 here, and that actually surprises me. If stigma

 6 were going to kill an industry, I would think that

 7 the pesticide industry and Monsanto would have

 8 been out of business years ago. They seem to be

 9 thriving very well. Why are they calling it a

 10 stigma? Why not call it an opportunity to be

 11 green and provide for a nice environment for the

 12 rest of us?

 13 Subtitle C makes common sense. The

 14 proponents of Subtitle D, therefore, seem to want

 15 to take a non-common-sense approach; and that

 16 doesn't make any sense to me at all. Finally,

 17 Subtitle D leaves the regulation to the individual

 18 states. We have seen that doesn't work.

 19 I strongly urge you to adopt Subtitle C.

 20 Thank you.

 21 SPEAKER: Hello. My name is Jacob

 22 Pohlman, and I am from Lafayette-Monroe,
 301

 1 Louisiana. I'm a student. My major is renewable

 2 resources. I'm also involved with an

 3 environmental group on campus called SPEAK, and

 4 I'm here with the Sierra Club. I would like to

 5 thank the EPA for holding this hearing and

 6 listening to all of the comments.

 7 I am here today to speak about the issue

 8 on the lack of regulation for coal ash and the

 9 effect it has on the community around it. In

 10 order to prevent another disaster like the

 11 Tennessee spill, for example, we must put Subtitle

 12 C into effect.

 13 I understand the effects it will have on

 14 coal-ash-related companies, but I feel we are in a

 15 progressive era and we cannot keep doing the same

 16 thing over and over. I feel if these companies

 17 are resourceful and prepared for this change, then

 18 they should be able to manage this change without

 19 (inaudible). Again, I am for Subtitle C and more.

 20 Thank you.

 21 MR. BEHAN: Ninety-six, 97, 99. Go

 22 ahead, sir.
 302

 1 SPEAKER: Good afternoon, and thank you

 2 for allowing me the opportunity to appear before

 3 you to express my concerns over EPA's proposed

 4 rule regarding the designation of coal combustion

 5 residuals as hazardous material. I am Sam

 6 Russell. I'm county judge of Titus County, which

 7 is located about 100 miles east of Dallas, on

 8 Interstate 30.

 9 Titus County is most fortunate to have

 10 five coal-fired generating units in our county,

 11 three of which are owned by Luminant and the other

 12 two owned by SWEPCO. Neither of these companies

 13 have foul nests in our area. In fact, Luminant

 14 and SWEPCO have been responsible corporate

 15 neighbors and citizens for many years, and we

 16 certainly want to see that continue.

 17 Designation of coal ash as hazardous

 18 material could be detrimental to our local

 19 economy. Not only could it cost us jobs in our

 20 electric utilities industry, but also other local

 21 jobs and services in our communities, county, and

 22 state. Additionally, we could very well see
 303

 1 higher costs for consumers in electric rates and

 2 even natural gas prices in our area.

 3 Let me take a moment to explain the

 4 economic benefits we currently enjoy with the

 5 presence of these utility companies in our county.

 6 These electric utility companies paid over $25

 7 million in property taxes in 2009, which benefited

 8 not only our county, but our communities, schools,

 9 community college, hospital, and other local

 10 taxing entities.

 11 These electric utility companies provide

 12 over 700 jobs directly to our area, plus many

 13 others that act in a support capacity to these

 14 utility companies. Companies such as Boral are

 15 located in Titus County and recycle coal ash

 16 products.

 17 Job creation and the protection of

 18 current jobs are vital to our economy, not only in

 19 Titus County but also in Texas. The recent

 20 downturn in our economy, along with the recent

 21 loss of many jobs due to changes in the poultry

 22 industry and Pilgrim's Pride Corporation, cause us
 304

 1 great concern when other jobs could likely be

 2 threatened by the proposed rule changes.

 3 The TCEQ's comprehensive CCR handling

 4 and disposal regulations has proven effective. As

 5 a result, there have been no catastrophic failures

 6 at any facilities in Texas.

 7 We, along with the power generation

 8 industry, support the continued designation and

 9 regulation of CCRs as non-hazardous waste.

 10 Regulation of CCRs as hazardous material would

 11 strip states of the ability to cost effectively

 12 regulate CCR disposal practices and would impede

 13 the beneficial use of CCRs. This will impact

 14 jobs, consumer costs, local and state government

 15 revenues, coal mining jobs, and other things.

 16 Thank you again for this opportunity.

 17 MR. BEHAN: Is 97 here? Ninety-nine.

 18 SPEAKER: Good afternoon. I'm Matt

 19 Childs, president of the American Concrete Pipe

 20 Association, a licensed professional engineer in

 21 the state of Texas, and I have a master's degree

 22 in environmental engineering from the University
 305

 1 of Texas at Arlington.

 2 I grew up working in a concrete pipe

 3 plant and paid for my college that way and have

 4 actually been probably one of the few people here

 5 who has held fly ash in their hands. And, yes, I

 6 still have hands.

 7 The American Concrete Pipe Association

 8 is here today representing our 50 member companies

 9 with 298 facilities located throughout the United

 10 States. Our industry manufactures approximately

 11 9.8 million tons of concrete drainage products

 12 annually. That translates into 1.2 million tons

 13 of cement and 400,000 tons of fly ash consumed.

 14 If fly ash is ruled to be a hazardous

 15 waste requiring special handling, it would become

 16 cost prohibitive to use. Our members would be

 17 forced to use only cement in the manufacturing of

 18 their concrete pipe. Using only cement, rather

 19 than fly ash, would result in an additional annual

 20 cost to our industry of $40 million. It would

 21 also hurt our ability to compete with a product

 22 that actually does hurt the environment: Plastic
 306

 1 pipe.

 2 Four hundred thousand tons of fly ash

 3 would not be encapsulated in concrete. Four

 4 hundred thousand tons of additional cement would

 5 need to be made using cement products. This, in

 6 turn, would negatively affect the marketplace for

 7 not only highway drainage products but for all

 8 concrete structures.

 9 The ACPA understands the need for the

 10 EPA to craft an approach that protects the public

 11 health and the environment to address the

 12 shortcomings of the current regulations governing

 13 impoundments, like those that failed and resulted

 14 in the spill at the Kingston facility in 2008.

 15 However, additional requirements burdening the

 16 beneficial use of fly ash is not the answer.

 17 The American Concrete Pipe Association

 18 agrees with EPA's position that it should not

 19 change the May 2000 regulatory determination for

 20 beneficial use CCRs. The EPA has acknowledged

 21 that it has seen no evidence of damages from the

 22 beneficial uses of CCRs. It also believes that
 307

 1 such beneficial uses of CCRs offer significant

 2 environmental benefits.

 3 Although the EPA would list CCRs under

 4 Subtitle C as a special waste by using Subtitle C

 5 to regulate CCRs, the EPA would be branding CCRs

 6 as a hazardous waste de facto.

 7 Given the choice of the two proposed

 8 alternatives by the EPA, the ACPA supports

 9 Subtitle D as being better suited to improve the

 10 safety of storing CCRs in impoundments, while not

 11 burdening CCRs with the label of hazardous waste.

 12 Thank you for your time today.

 13 MR. BEHAN: One hundred, 101, 105, 106,

 14 and 109, please.

 15 SPEAKER: Thank you for this opportunity

 16 to comment on the proposed CCR management rules.

 17 My name is Craig Bennett. I'm a geologist with

 18 Bullock, Bennett & Associates, a geoscience and

 19 engineering firm located in Bertram, Texas.

 20 I speak from 18 years of direct

 21 firsthand experience with CCR projects in Texas.

 22 These projects include CCR characterization,
 308

 1 landfill design, construction oversight, operation

 2 support, risk assessment, facility closure,

 3 groundwater modeling and monitoring, and recycling

 4 support.

 5 Despite the misinformation commonly

 6 promulgated by many supporters of CCR regulation,

 7 the current program in Texas does provide for such

 8 common-sense safeguards as landfill liners,

 9 groundwater monitoring, and cleanup standards.

 10 CCR disposal facilities in Texas are

 11 strictly constructed in accordance with TCEQ

 12 Industrial and Hazardous Waste Technical Guidance

 13 Number 3. Every design and construction of a CCR

 14 landfill in Texas that I've been involved with

 15 over the course of my career has met or exceeded

 16 the technical requirements for liners listed in

 17 Technical Guidance Number 3.

 18 Groundwater monitoring is already

 19 adequately addressed by TCEQ Guidance Document

 20 Number 6, as well as many EPA RCRA guidance

 21 documents. I personally manage groundwater

 22 monitoring programs at six CCR landfills in Texas.
 309

 1 Again, groundwater at these facilities is

 2 routinely monitored and evaluated, and to suggest

 3 otherwise is wrong.

 4 Non-hazardous CCR landfills are

 5 remediated and closed in Texas under the TCEQ's

 6 Texas Risk Reduction Program or the Risk Reduction

 7 Standards. These programs explicitly require a

 8 complete evaluation of soil and groundwater data

 9 to ensure the facilities are closed so as to

 10 remain protective of human health and the

 11 environment. In addition, after closure, ongoing

 12 groundwater monitoring, site inspection, and

 13 maintenance is required to be documented and

 14 submitted for TCEQ review.

 15 In 18 years of environmental consulting

 16 on CCR projects in Texas, I have never seen any

 17 waste classification data to remotely suggest that

 18 CCRs should be managed as a hazardous waste. To

 19 regulate CCRs as hazardous is wasteful and

 20 potentially detrimental to ongoing recycling

 21 efforts.

 22 If CCRs are not characteristically
 310

 1 hazardous, and the primary impetus for these new

 2 proposed rules is the December 2008 Tennessee

 3 Valley Authority dike failure, then shouldn't the

 4 proposed rules be primarily focused on inspection

 5 and maintenance of CCR facility dikes? By the

 6 way, we also do that, too. Every CCR landfill

 7 we're associated with is inspected twice per year

 8 by a licensed professional engineer and maintained

 9 accordingly.

 10 Again, thank you for the opportunity to

 11 speak here today.

 12 MR. BEHAN: Thank you.

 13 SPEAKER: My name is Reverend Dr. T.

 14 Randall Smith, and I'm the president of the board

 15 of directors of Texas Impact, a statewide

 16 interfaith organization concerned with educating

 17 faith communities in Texas and then enabling them

 18 to make their voice heard on those public policy

 19 issues which touch on their common teachings and

 20 shared theological understandings.

 21 The board I represent is composed of 45

 22 members predominantly from the Jewish, Muslim, and
 311

 1 Christian communities of faith. Those 45 persons

 2 represent Catholic, Lutheran, Presbyterian, United

 3 Church of Christ, Society of Friends, United

 4 Methodist, the Christian Life Commission of the

 5 Baptist General Convention, and regional Jewish

 6 and Muslim organizations. It is fair to say that

 7 we provide resources on public policy to millions

 8 of Texans in the interfaith community through our

 9 membership.

 10 We are deeply aware that the perspective

 11 we bring to this hearing is somewhat unique,

 12 representing as it does a word from the faith

 13 communities to those with public responsibility

 14 for caring for the good creation which we

 15 received.

 16 Within our faith communities, the

 17 preponderance of theological reflection

 18 understanding establishes that human beings have

 19 been entrusted with a responsibility to give

 20 care-filled oversight to God's creation, not in

 21 order to exploit it without regard for the health

 22 and safety of current and future generations, but
 312

 1 to ensure that creation is maintained and made

 2 more bountiful for the good of each and every

 3 generation.

 4 To exploit the resources God has

 5 provided humanity while damaging, or even laying

 6 waste to, the regenerative power of creation with

 7 which it has been endowed by divine creativity, is

 8 more than criminal to our faith communities; it's

 9 blasphemous, for it despoils that which God has

 10 made and called good.

 11 From the perspective of faith, human

 12 beings are to mirror the gracious and loving

 13 creativity of the Holy and Living One. If they do

 14 not, they make false what God has declared: The

 15 divinely-appointed vocation of human beings is to

 16 exercise the sovereign, holy, loving kindness of

 17 God for the sake of the land and the sea and all

 18 the inhabitants thereof. What God has called good

 19 and very good, we may not treat with wanton

 20 disregard for its divine purpose.

 21 It is our position that public policy

 22 should be shaped by what is in the interest of the
 313

 1 best stewardship of the rich resources with which

 2 we have been gifted. Efficiencies of scale and

 3 cost must not exclude a concern for outcomes in

 4 the lives of those immediately affected and of

 5 those affected long-term by our policy decisions.

 6 Economic considerations which do not

 7 protect human life and the creation or which place

 8 short-term profits for shareholders above the

 9 needs of those who are God's primary concern --

 10 the human and natural stakeholders in a

 11 well-tended creation -- are not only short-sighted

 12 economically.

 13 Such considerations are, to put it in

 14 blunt religious language, sinful. They defiantly

 15 ignore God's intention for the divinely-wrought

 16 creation and the creatures who inhabit that

 17 creation. That's a perilous way to live and act

 18 and have our being.

 19 That is why the faith communities which

 20 are our constituents want to say to you today that

 21 we expect that you will take with utmost

 22 seriousness the careful stewardship of the
 314

 1 resources of this part of God's creation. Thank

 2 you.

 3 SPEAKER: Good afternoon. My name is

 4 Gary Gibbs, and I work for AEP Texas.

 5 Back when I was getting my degree in

 6 civil engineering at Texas A&M almost 37 years

 7 ago, I worked in the environmental engineering

 8 department there at A&M doing research on

 9 coal-fired power generation and specifically on

 10 coal ash. We knew that coal was going to become a

 11 big deal in Texas, and A&M wanted to understand

 12 that. They concluded that there was a very bright

 13 future, for the record, for Texas, and I think

 14 that future has been bright.

 15 When I graduated, I went on to work for

 16 the electric power industry, licensing and

 17 building coal-fired power plants. I've been doing

 18 that for more than three decades, working on coal

 19 ash and management of coal ash. I can tell you

 20 that it is one of the most studied and most

 21 well-understood recycling materials. I can also

 22 tell you that a tremendous amount of engineering
 315

 1 goes into the design of coal ash management

 2 facilities here in Texas and that those are

 3 well-regulated by the TCEQ.

 4 Coal fly ash and portland cement have

 5 remarkably similar properties. Fly ash is

 6 commonly used in portland cement concrete to

 7 improve the quality of concrete mix, making it

 8 easier to pour and to pump. The end result is a

 9 stronger, longer-life concrete that wouldn't

 10 otherwise be possible. That's why the

 11 much-respected American Society of Testing and

 12 Materials has long had specifications for the use

 13 of fly ash in concrete, and that's why the Texas

 14 Department of Transportation specifies the use of

 15 coal fly ash in concrete for its highway projects.

 16 Those who were working in this area

 17 early on remember clearly the waste stigma that

 18 coal ash recycling efforts faced at that time. We

 19 had a good story to tell, and we overcame that

 20 stigma. Today, the use of coal ash in concrete

 21 stands as one of the most successful recycling

 22 stories.
 316

 1 Unfortunately, the EPA's proposed rule

 2 could severely cripple this shining success and

 3 have the resulting effect of driving up the cost

 4 of concrete and causing fewer transportation

 5 projects to be built across this country. Instead

 6 of being recycled, this coal ash will instead go

 7 into industrial landfills. Countless new, large

 8 landfills will be required to bury this much ash.

 9 I urge you to reconsider your approach

 10 and not adopt the rules that would further

 11 stigmatize coal ash. It's far too valuable of a

 12 resource to simply bury.

 13 MR. BEHAN: Thank you.

 14 SPEAKER: Hi. My name is Erin Hickok,

 15 and thank you so much for having this hearing here

 16 today. I'm honored to be here.

 17 I'm representing myself as a citizen

 18 from Austin, Texas, and I'm representing myself as

 19 an aunt of two nieces and a nephew. I represent

 20 my two roommates who work in the solar industry at

 21 home in Austin. I represent a group of people

 22 who, despite the rain, came here wanting to give
 317

 1 their comments. About 15 of them had to leave a

 2 little bit earlier today.

 3 I also represent 200 -- actually, 449

 4 people who have submitted both handwritten letters

 5 and signed comments to the EPA asking for stronger

 6 protections from toxic coal ash. So I'd like to

 7 submit these to you today.

 8 Perhaps the person -- the people that

 9 I'm representing the most is our future, and I

 10 just wanted to share this with you. This is a

 11 picture that was collected. It was made by a

 12 9-year-old and an 11-year-old. They created this

 13 to give to the EPA as their comment.

 14 I just wanted to share all those

 15 comments that I brought with you today. They were

 16 actually collected in just the past two days,

 17 right here in Dallas, of just people knocking on

 18 doors and saying, hey, what do you think about

 19 coal ash? Just getting people's opinions, just

 20 two days. Less than 20 people -- 15 people just

 21 going out and knocking on doors. They took their

 22 time to make handwritten letters because they
 318

 1 couldn't be here today.

 2 I do want to thank you for having us. I

 3 want to thank you for taking the comments. We

 4 urge you strongly to provide the best protection

 5 for our future, to really provide the best

 6 opportunity for wind and solar power, and to make

 7 sure that we're keeping our water and our air as

 8 clean as possible. Thank you.

 9 MR. BEHAN: Thank you. Number 97. Is

 10 there anyone else in the room that has not spoken

 11 that has a number of 100 or lower? 109, 111, come

 12 on up. 114, 115, and 116, if you would come

 13 forward, please.

 14 SPEAKER: Hi. My name is Stephanie

 15 Jordan, and I am a farmer from a small community

 16 near Oklahoma City. As a farmer, I want to follow

 17 up on some of the conversation that's been going

 18 on about how farmers need access to the products

 19 that are manufactured from fly ash. I gotta say

 20 as a farmer, I wouldn't want this crap near my

 21 food.

 22 That being said, I've studied this issue
 319

 1 a lot. I'm an activist and it really has -- it

 2 has struck a chord with me. In trying to boil

 3 down something so complex that I feel really

 4 passionate about into a three-minute argument, it

 5 occurred to me, there are really only two elements

 6 to this argument. There is health and there is

 7 dollars. I don't know why in this country we keep

 8 trying to barter those two things. To me, they're

 9 not interchangeable. But since we're here and

 10 that's what we're doing, let's just try on each

 11 other's argument.

 12 So everybody on the health side of this

 13 argument, if you would take a moment to do an

 14 experiment with me, and ask yourself what dollar

 15 amount it would take for you to be willing to ask

 16 your neighbor to live near an unregulated fly ash

 17 dump. Whatever that dollar amount is, it's not

 18 the dollar amount we're saving on our electric

 19 bill by keeping things the way that they are. So

 20 when you say health versus dollars, health wins.

 21 Everybody on the dollar side of the

 22 argument that are coming up here trying to tell us
 320

 1 that this product isn't unsafe, I'd like to ask

 2 you to do me a favor. I'd like you to go home

 3 tonight, take a tablespoon of fly ash, stir it

 4 into a glass of Kool-Aid, and feed it to your

 5 children, because that's what you're asking me to

 6 do, and that's what the people in towns like

 7 Bokoshe and the 900 other towns that live near a

 8 fly ash dump, that's what they have to do every

 9 night.

 10 That's not a good choice. But we're

 11 being asked to do that so people don't have to

 12 change their business model. And I just want to

 13 tell you, I'm not interested in drinking your

 14 Kool-Aid, I'm not interested in my neighbors

 15 drinking your Kool-Aid, and I hope that the EPA

 16 isn't interested in drinking your Kool-Aid either.

 17 I would really appreciate it if you

 18 would consider implementing Subtitle C and making

 19 that a good starting place. Thank you.

 20 MR. BEHAN: Thank you.

 21 SPEAKER: My name is Whitney Pearson,

 22 and I'm a resident and concerned citizen of
 321

 1 Oklahoma.

 2 If we were to move this country beyond

 3 coal, we end the problem of coal ash; but until

 4 America is ready to end its addiction to this

 5 dirty fuel, those who burn it must be responsible

 6 for the by-products.

 7 At least two sites in Oklahoma show that

 8 currently those who burn coal are being

 9 irresponsible. The state regulatory agencies have

 10 failed to act, and we need strict, clear,

 11 enforceable regulations of Subtitle C.

 12 In Oklahoma, three agencies regulate the

 13 fly ash dump in Bokoshe, as you heard earlier.

 14 For almost two years, citizens who are impacted

 15 daily by the fly ash have called these agencies to

 16 fix the problems in Bokoshe, a problem that these

 17 agencies permitted to get out of hand.

 18 Many of us in Oklahoma have called our

 19 elected and appointed officials but only to find

 20 out -- to ask them why they are not addressing the

 21 situation in Bokoshe. They tell us that they

 22 don't have the authority or they don't see any
 322

 1 violations or that it's someone else's

 2 responsibility.

 3 I've been to the fly ash pit in Bokoshe,

 4 Oklahoma, and I've seen documentation of the

 5 violations; and the failure of state agencies is

 6 obvious. The failure of state agencies is also

 7 apparent in Oologah, Oklahoma, where, for 30

 8 years, the coal-fired power plant has disposed of

 9 its fly ash in an unlined pit.

 10 No one monitored the groundwater there

 11 until 2008, and the data shows the contaminants

 12 have leached into the groundwater and there are

 13 heavy metals exceeding both federal and state

 14 maximum containment levels in the groundwater.

 15 The operator of the plant has

 16 acknowledged that it has contaminated groundwater

 17 beneath its facility, but unfortunately they claim

 18 that there is no proof that contamination has

 19 spread offsite.

 20 Isn't it clear that groundwater

 21 contamination doesn't confine itself within

 22 property lines? Isn't it clear that if the
 323

 1 operator were acting responsibly, it would

 2 determine the extent of the pollution instead of

 3 denying its existence?

 4 We know from the experience of Oologah

 5 and Bokoshe, Oklahoma; Kingston, Tennessee; and

 6 elsewhere that coal ash is hazardous. So why are

 7 the regulations, if any, so weak? Why is the

 8 health of so many put at risk? Mercury, lead,

 9 cadmium, arsenic, selenium -- the list goes on and

 10 on of heavy metals we know can cause organ

 11 disease, cancer, respiratory illness, neurological

 12 damage, developmental problems.

 13 Living near a coal ash site is

 14 significantly more dangerous than smoking a pack

 15 of cigarettes a day, according to a risk

 16 assessment done by you, the EPA. I also ask the

 17 EPA to (inaudible) beneficial reuse of coal ash.

 18 Industry has promoted the idea that dumping fly

 19 ash on the ground is beneficial use. They claim

 20 that farmers can use it as a soil amendment. This

 21 is the same industry that determined you can

 22 safely dump it in a pit in Oologah and didn't even
 324

 1 monitor the groundwater for 30 years.

 2 We've seen that coal ash pollutants can

 3 build up in plants and animals and these

 4 pollutants can cause deformities and mutations and

 5 thus possibly enter the human food chain.

 6 We need the federal enforcement and

 7 financial accountability that a Subtitle C

 8 designation would provide. Coal ash should be

 9 regulated from cradle to grave. Subtitle D is not

 10 sufficient. Please adopt Subtitle C designation

 11 and protect citizens and communities from toxic

 12 coal ash. Thank you.

 13 MR. BEHAN: Thank you. 114.

 14 SPEAKER: My name is Chuck Gross. I'm

 15 president of the Oklahoma Sustainability Network.

 16 We're very familiar with the Bokoshe situation

 17 which has not resulted in proper controls being

 18 implemented by the permits which were properly

 19 issued or were issued.

 20 MR. BEHAN: Sir, could you speak into

 21 the microphone or get a little closer, please.

 22 Thank you.
 325

 1 SPEAKER: The choice is very clear, I

 2 think. The environmental people are all for

 3 Number C. The business people are pretty much for

 4 the Proposal D.

 5 Sustainability takes into account a

 6 third component. These were the components that

 7 were actually designed by EPA, and that is the

 8 social justice area. For people such as those in

 9 Bokoshe, there is no social justice that's really

 10 covered by the Part D proposal.

 11 Business is not just going to take care

 12 of this by themselves. The publicity that

 13 surrounded the Bokoshe fly ash operation, there

 14 were articles and newspaper items published both

 15 in Tulsa and Oklahoma City. Nobody stepped up

 16 from the industry to say, hey, let's make sure

 17 that that's resolved. The regulators who handled

 18 the permitting had their hands tied and limited in

 19 what they could do.

 20 There is another component that's going

 21 to make this more serious, I think. In the cement

 22 industry, the controls of mercury have already
 326

 1 been established using maximum (inaudible) control

 2 technology. This increases the mercury component

 3 in fly ash. This is what seems to be headed

 4 toward controls in the power plant industry. This

 5 is going to make that a worse problem than what it

 6 is now.

 7 I hope that you will move to adopt the

 8 Subtitle C proposals. Thank you for your time.

 9 Thank you for taking the time to listen to us.

 10 MR. BEHAN: Thank you. 115.

 11 SPEAKER: Good afternoon. My name is

 12 Edward Silva of Ronald Mark Associates, a company

 13 based in New Jersey. Today, I'm representing the

 14 Geosynthetic Materials Association, the trade

 15 group of 80 companies that manufacture,

 16 distribute, and install geosynthetic materials,

 17 including liner systems. The industry employs

 18 12,000 people throughout the United States.

 19 Our comment to the EPA is very simple.

 20 We request that EPA mandate the geosynthetic

 21 lining of coal ash storage facilities using

 22 composite lining systems. In the shortest terms:
 327

 1 Use liners, specifically composite liners.

 2 Why? Because liners work. Concerns of

 3 safety regarding CCRs are mitigated if the

 4 landfill storage sites are lined with a composite

 5 liner system of a geomembrane and a geosynthetic

 6 clay liner. A composite liner system prevents the

 7 leachate from entering the environment. Safety

 8 concerns regarding surface impoundments are also

 9 mitigated if the impoundments are lined with a

 10 composite liner system.

 11 The American Society of Civil Engineers

 12 does a regular report card on America's

 13 infrastructure. For the last three report cards

 14 representing over a decade, solid waste has

 15 received the highest grade of any category. My

 16 industry does a good job of taking America's waste

 17 and properly storing it to protect the

 18 environment.

 19 The materials, technology and people

 20 exist, the engineers, engineering techniques and

 21 standards, the general contractors and installers

 22 who build the proper facilities and the regulators
 328

 1 and inspectors who assure the work is done

 2 correctly. We urge EPA to use what exists and is

 3 working today.

 4 Further, our industry has continuously

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

 6 that effort. Over the years, EPA has commissioned

 7 nearly 80 studies of the design and performance of

 8 lining systems. We specifically call your

 9 attention to a 2002 study titled "Assessment and

 10 Recommendations for Optimal Performance of Waste

 11 Containment Systems."

 12 That study contains a great deal of

 13 pertinent information on how to construct

 14 containment systems. Most illustrative for today

 15 is a graph charting the leakage rate of different

 16 designs over the life cycle of nearly 200

 17 facilities.

 18 The composite liner system of a

 19 geomembrane and a geosynthetic clay liner was

 20 demonstrated to have the lowest leakage rate over

 21 all life cycle stages, including a near zero

 22 leakage rate after the facilities are closed and
 329

 1 final cover placed. Our materials work. Use of

 2 composite liner systems will achieve the EPA

 3 mission to protect human health and the

 4 environment for all Americans.

 5 A brief word on the hazardous or

 6 non-hazardous question. While coal ash does

 7 contain heavy metals, it lacks the traditional

 8 characteristics of hazardous materials:

 9 Radioactivity or the presence of infectious

 10 medical waste.

 11 In the opinion of our trade

 12 organization, coal ash can be properly stored

 13 using Subtitle D regulations, a non-hazardous

 14 solid waste designation, with composite liner

 15 systems. Thank you.

 16 MR. BEHAN: Thank you.

 17 SPEAKER: Good afternoon. My name is

 18 Rita Beving. I am one of the representatives of

 19 the Dallas Sierra Club, which has 4,500 members

 20 here in the Dallas area. We happen to have, in

 21 the Fort Worth club, 1,700 members. I'm here

 22 today in support of Option C for the EPA in
 330

 1 regards to the regulation of coal ash.

 2 In my 15 years in environmental

 3 activism, I hear the same excuses from industry

 4 when it comes to these sort of regulations being

 5 developed and considered. One is jobs. No one

 6 says there aren't jobs in developing a proper

 7 landfill, monitoring and manifesting that

 8 landfill. So you can create more jobs by having

 9 better regulation.

 10 The other thing I hear today is property

 11 taxes. Nobody's going to deny industry paying

 12 their property taxes, even after they get the

 13 proper landfill for their coal ash.

 14 The last thing I always hear is sound

 15 science. Well, I believe the EPA has put these

 16 rules out with sound science. And the sound

 17 science that arsenic, cadmium, chromium, barium,

 18 selenium are hazardous to your health is a

 19 well-proven, documented medical fact. So the

 20 sound science of the medical effects of hazardous

 21 waste is there and undeniable and unrefutable.

 22 So, therefore, we don't need any more incidents
 331

 1 like Tennessee to tell us that we need coal ash

 2 monitored, regulated, with the proper landfills

 3 and proper disposal.

 4 The bottom line is, coal ash needs to be

 5 monitored from cradle to grave, and Option D does

 6 not have the teeth or the enforceable-type

 7 regulations that we need with Option C.

 8 Therefore, I urge the EPA to adopt Option C.

 9 Thank you.

 10 MR. BEHAN: Thank you. Numbers 118,

 11 119, 248, 249, 250, 251, 213, 252, 253, 254. 118.

 12 SPEAKER: My name is Tom Smith. I'm

 13 better known as Smitty. I'm director of the

 14 Public Citizen's Texas office, and we are here to

 15 support Subtitle C, which would require far more

 16 stringent regulation of coal combustion waste than

 17 we have today in the United States and Texas.

 18 There are a number of reasons why we

 19 support this. We, along with others, have long

 20 been concerned about the prevalence of mercury and

 21 other contaminants in the fish and the lakes

 22 around our power plants. I understand fully that
 332

 1 there are significant differences between the kind

 2 of regulation the EPA does of coal combustion

 3 wastes from the plants that burn in Texas, low

 4 sulphur western coal which is imported, and those

 5 that are regulated by Department of Energy and

 6 Railroad Commission that actually mine coal onsite

 7 and then deposit it back in their mines. We wish

 8 these rules would also apply to those kinds of

 9 wastes.

 10 But what's clear in Texas is that we

 11 have a significant level of contamination. I

 12 think it's now up to 16 different lakes or bodies

 13 of water, almost all of which are downgradient, as

 14 opposed to downwind, from coal plants. The source

 15 of this is mysterious to all of us. It could be

 16 the emissions coming out the top of the stack or

 17 it could be leachate coming out of the bottom.

 18 The problem is we don't know. We don't

 19 have adequate monitoring reported annually in ways

 20 that are understandable to folks around the

 21 plants, nor do we have federal supervision to make

 22 sure the data we're getting are accurate and
 333

 1 adequate. We think there is a real advantage to

 2 Subtitle C in that it does require federal

 3 enforceability.

 4 Another big issue that we see is that as

 5 our pollution control devices have gotten better

 6 over the years, the toxicity of the coal

 7 combustion waste has gotten higher. Due to the

 8 engineering of many people in this room and many

 9 others, we're now able to pull 90 percent of the

 10 toxins out of the smokestacks. That's the good

 11 news.

 12 The bad news is that the by-products,

 13 the toxins, the ash, that is captured in the bag

 14 houses and other pollution control devices is now

 15 then put back into the coal combustion waste and

 16 becomes far more toxic.

 17 Things that may have been previously

 18 inert and easily recyclable to use in road bases

 19 and others that cause the contamination of the

 20 various types of catalysts and reagents in the

 21 atmosphere now have various toxic particles

 22 associated with them as well.
 334

 1 So the question of what's recyclable is

 2 not as easy or as clear as it was a generation

 3 ago, before we had these pollution control

 4 devices. The decisions you have before you carry

 5 with them significant toxic consequences.

 6 Coal combustion waste has been a

 7 significantly covered-up problem for the last 35

 8 years in this country; and the EPA, through the

 9 previous administrations, hasn't had the courage

 10 to do what's necessary or regulate it to protect

 11 public health.

 12 My time is up and we think that your

 13 time is up now to regulate it and to do what's

 14 necessary to enforce the rules uniformly across

 15 the states. Had that been done by the state

 16 agencies, we wouldn't have the mess we have today

 17 across Texas and many other states. Thank you

 18 very much for your time.

 19 MR. BEHAN: Thank you. Number 119.

 20 SPEAKER: Hello. I'm Richie

 21 Benninghoven with USC Technologies out of Kansas

 22 City, Missouri. I've come today to support
 335

 1 Subtitle D.

 2 Our company -- we're a small business.

 3 We have eight employees. We utilize

 4 self-cementing, self-encapsulating fly ash to

 5 backfill underground limestone mines to stabilize

 6 them so that the surface can be put back to

 7 productive use.

 8 I just want to point out to the EPA that

 9 the sites are different and ashes are different

 10 all over the country. So to write a rule that --

 11 I sympathize with you to write a rule to cover the

 12 whole country. It's very difficult, with all the

 13 different products and all the different uses that

 14 we have for the material.

 15 I've got a picture of an underground

 16 limestone mine here. It's underneath the water

 17 table. You can see it's dry. There is no water

 18 coming through. That indicates its high

 19 impermeability to water flow. The result of fly

 20 ash in backfilling looks like this, after you

 21 remove the berm, which is a lot different than

 22 what we saw in Kingston. If this were the
 336

 1 Kingston ash, it would have flowed out. This

 2 stands at a negative one-to-one slope. So it's

 3 cemented up there. It's encapsulated all these

 4 heavy metals that have been referred.

 5 The result of that is over $200 million

 6 of surface development, such as this office

 7 building, over the top of the mine that would be

 8 not possible without the use of cementitous fly

 9 ash to stabilize that underground mine.

 10 I encourage the EPA to consider in the

 11 rule an ash characterization, site

 12 characterization, standard for mine fills, quarry

 13 fills. There are -- I do recognize there are

 14 situations where you do not want to put this

 15 stuff, because of high groundwater flow and

 16 potential for the heavy metals to leach out, but

 17 there are instances where that's not the case. It

 18 can be very protective and very beneficial to the

 19 community and the environment and everybody's

 20 health.

 21 Thanks for your time.

 22 MR. BEHAN: Thank you.
 337

 1 SPEAKER: Hi. My name is Kelly Elvton,

 2 and I'm speaking as a citizen of Lafayette. I go

 3 to UOL; I am majoring in (inaudible) sources. I'm

 4 here with the Sierra Club because of SPEAK at

 5 school, the environmental action club.

 6 I'm speaking as a happy citizen of

 7 Lafayette, Louisiana, and I'm honored to be here

 8 on behalf of those affected negatively by coal ash

 9 waste, and I'm happy because my drinking water and

 10 air are not so polluted that I have to worry about

 11 toxic and potentially lethal poisoning over time.

 12 I'm also happy because I'm not living in a

 13 community that has to suffer so that energy can be

 14 cheap for everyone.

 15 All the other cities like New Roads,

 16 Mansfield, and Lena, Louisiana, that are home to

 17 coal power plants and coal ash landfills and ash

 18 ponds, in these communities residents have high

 19 cancers of 1 in 50. It's because of the toxins in

 20 the coal ash waste linked to all the cancer and

 21 disease and respiratory illnesses. That is the

 22 general diagnosis for what many people living near
 338

 1 the plant suffer with.

 2 So, needless to say, on behalf of my

 3 neighboring cities, I strongly support federal

 4 regulation of coal ash, specifically Subtitle C,

 5 because coal ash is a toxic by-product of the coal

 6 industry and it is destroying communities. Thank

 7 you for your time and concern.

 8 MR. BEHAN: Thank you.

 9 SPEAKER: Good afternoon. I am Roger

 10 Grissette of Tulsa, Oklahoma. I am a retiree with

 11 five granddaughters. I'm a life member of the

 12 Sierra Club, but I'm here today as a private

 13 citizen.

 14 We need mandatory federal safeguards to

 15 protect our environment from improper coal ash

 16 disposal. Safeguards require clear and

 17 unambiguous protections for surrounding

 18 communities. Such safeguards should include

 19 composite liners, water runoff controls,

 20 groundwater monitoring, and assurance that

 21 companies have the financial ability to pay to

 22 clean up what they pollute.
 339

 1 One thing is clear, coal must be cleaned

 2 up, and the industry cannot or will not clean

 3 itself. EPA should choose the strongest of its

 4 proposed federally enforceable safeguards to hold

 5 this industry accountable and to speed the

 6 transition to a clean energy economy.

 7 People living near coal ash sites have a

 8 staggering 1 in 50 chance of contracting cancer.

 9 Both the EPA and the National Academy of Sciences

 10 -- Science have years of research making it clear

 11 that coal ash is toxic and a threat to human

 12 health. I note the industry continues to argue

 13 the contemplated changes would, quote, threaten

 14 the steady, dependable flow of affordable energy

 15 for American consumers and businesses. Most

 16 critics of the power industry would argue just the

 17 opposite. Taking these utilities off the hook

 18 only allows them to further delay necessary

 19 changes to modernize their generation.

 20 In addition to the environmental impact,

 21 aging power plants with older technology are less

 22 dependable and place a huge stress on the
 340

 1 distribution grid when they fail. Please don't

 2 provide this industry with another excuse to delay

 3 necessary capital improvements needed.

 4 Finally, all too often we see warning

 5 flags of companies that pay -- play the system

 6 through delaying tactics and appeals to your

 7 directives. Although such procedures will -- are

 8 legitimate, the recurrence often seems to

 9 characterize a huge tragic event in the making.

 10 I don't need to remind you that your

 11 middle name is protection. I ask your special

 12 attention to organizations that have repeating

 13 problems. America can and should do better. We

 14 promised the nation to protect our air, water,

 15 forest, and wildlife. Please help ensure we don't

 16 default on these promises.

 17 Finally, I'd like to -- it's not my

 18 first EPA hearing. I'd like to thank you for the

 19 extra effort you made to include people, to in --

 20 by rearranging things, and also by extending the

 21 period. Appreciate it.

 22 MR. BEHAN: Thank you. Number 102, 123,
 341

 1 124.

 2 SPEAKER: Good afternoon. My name is

 3 Amanda Robinson. I am coordinator of Texas

 4 Interfaith Power and Light, the environmental

 5 program of Texas Impact, Texas' oldest interfaith

 6 public policy advocacy organization. I'm also a

 7 second-year master's of divinity student at Austin

 8 Presbyterian Theological Seminary. And I'm a mom.

 9 Thank you for the opportunity to be here today.

 10 There is a teaching in the Jewish

 11 tradition from Rabbi Israel Meir ha'Kohen. He

 12 said, When a group of people are sailing in a

 13 boat, none of them has a right to bore a whole

 14 under his own seat. This is a simple teaching

 15 about basic care and concern for our neighbors,

 16 about the responsibility we each have to the

 17 larger community, and about the fundamental

 18 reality that our lives here on earth are both

 19 fragile and highly interconnected. When we allow

 20 toxic substances to enter our environment, human

 21 health suffers. It's a lot like drilling a hole

 22 in our boat.
 342

 1 Of all the states, Texas generates the

 2 second highest amount of coal ash, 12.9 million

 3 tons every year, and yet we do not have adequate

 4 regulations in place to protect human health or

 5 the environment. Toxic coal ash, when not

 6 properly disposed of, poses risks that include

 7 elevated mercury and selenium in water and fish,

 8 and increased cancer risks in people. Basic care

 9 and concern for our neighbors calls us to do what

 10 we can to keep people safe, especially the poor

 11 and people of color, who often live in areas

 12 subject to coal ash contamination.

 13 The religious leaders and congregations

 14 with whom I am honored to work, pray for a day

 15 when all electricity will be generated from clean,

 16 renewable sources. Until that day comes, we ask

 17 that coal ash be tested to ensure safety before it

 18 is allowed to be recycled. And we ask that

 19 federal standards be put into place to ensure

 20 protections for human health and the environment.

 21 We support adoption of the Subtitle C option.

 22 There is one more teaching that I'd like
 343

 1 to share with you today. In my tradition, human

 2 beings are recognized as being different from the

 3 rest of creation. This does not give us license

 4 to exploit the natural world, though. On the

 5 contrary, as Rabbi Howard Kushner explains, We

 6 have a special responsibility precisely because we

 7 are different, because we know what we are doing.

 8 We know what we are doing. Now, we need to take

 9 responsibility for it. Please adopt the Subtitle

 10 C option. Thank you.

 11 MR. BEHAN: Thank you. 123, 124, 129.

 12 Is there anyone in the room that has a number that

 13 begins with 100 that has not spoken? 254, 255,

 14 256, 257. Is there anyone in the room -- if you

 15 have a number in the room and you have not spoken,

 16 could you just hold up your number or hold up your

 17 hand? One, two, three, four. Why don't -- why

 18 don't everyone who has a number come on up to the

 19 front.

 20 Go ahead, ma'am.

 21 SPEAKER: Thank you. My name is Evelyn

 22 Merz. I am the conservation chair of the Lone
 344

 1 Star Chapter of the Sierra Club. And I want to

 2 thank you all for having this meeting here today.

 3 Time has taught us that coal ash is not

 4 benign, even though there are beneficial uses. It

 5 is not benign when improperly stored. Coal ash

 6 pollutes the groundwater. It is not benign when

 7 impoundments break and the coal ash slurry escapes

 8 to the neighboring streams.

 9 There has to be an acknowledgment that

 10 there are costs. There are costs to people and

 11 the environment when a substance containing

 12 arsenic, lead, mercury, cadmium -- and the list

 13 goes on -- is improperly stored and unmonitored,

 14 and occasionally and sometimes often essentially

 15 unregulated.

 16 We recommend that the EPA adopt Option

 17 C, which will establish federally enforceable

 18 standards for waste management and disposal. The

 19 current system does not protect water or people or

 20 the environment. Option D, which would rely upon

 21 the states to enforce guidelines, is not adequate.

 22 It certainly will not work in Texas where the
 345

 1 Texas Commission on Environmental Quality is

 2 absolutely legendary for its lax enforcement of

 3 air and water quality standards.

 4 Thank you again. And I hope that you

 5 take the comments you hear today to heart. And we

 6 appreciate your attention. Thank you.

 7 MR. BEHAN: Thank you. If the remaining

 8 speakers could self-order from lowest to highest

 9 and come up, that would be great.

 10 SPEAKER: Good afternoon. I'm a

 11 resident of West Houston. My name is V.J. Singal.

 12 And I'm testifying as a member of the general

 13 public. I might add, a member of the general

 14 concerned public. Whenever I get a chance to

 15 appear before a highly consequential governing

 16 body such as yours, I like to invoke a key phrase

 17 from the Abraham Lincoln Gettysburg Address. The

 18 phrase, a government for the people, which

 19 translated into today's issue at hand would mean

 20 putting the clamps on any industrial activity that

 21 is detrimental to the public's health, an activity

 22 that is endangering the public's health.
 346

 1 Gentlemen, you have plenty of

 2 incontrovertible evidence that coal ash is highly

 3 toxic, that is -- that it is unquestionably

 4 deleterious to the public's health. And you've

 5 also got similarly irrefutable evidence that the

 6 TCEQ has been utterly lax in monitoring and

 7 implementing the Clean Air Act and other

 8 environmental regulations. A case in point is the

 9 Fayette plant outside Austin where coal ash has so

 10 badly contaminated the water that it has been

 11 rendered undrinkable. I would say a perfect

 12 testimony to the TCEQ's apathy in matters

 13 environmental.

 14 And so if we -- if we are to adhere to

 15 the maxim of government for the people, then I

 16 think it's imperative and mandatory that the EPA,

 17 which is after all the protector of last resort

 18 for the American people -- when it comes to the

 19 environment, that the EPA would have to take firm

 20 and speedy steps to ensure new regulation, a

 21 regulation that is tough, that is unambiguous, and

 22 enforceable. And I believe that if you do that,
 347

 1 you will have every reason to feel truly ennobled.

 2 I thank you for giving me this opportunity to

 3 speak. Thanks.

 4 MR. BEHAN: Thank you.

 5 SPEAKER: Good afternoon. My name is

 6 Eric Ball. I am a secondary educator from New

 7 Orleans. My background is in biology.

 8 A few years ago, I was fortunate enough

 9 to do some ecology research in the Ecuadorian

 10 Amazon. And while there, I witnessed firsthand

 11 the irresponsible and unregulated activities of

 12 humans in the form of oil exploration. I saw the

 13 deleterious consequences that this had on the

 14 indigenous communities and on the ecosystems.

 15 And I am here testifying today because

 16 coal ash similarly threatens these ecosystems,

 17 which are networks of interrelatedness that --

 18 through which life expresses itself. And they are

 19 both unfathomably complex and amazingly delicate.

 20 They have -- they have developed and persisted

 21 over the course of millions of years.

 22 Coal ash has already been demonstrated
 348

 1 scientifically to have deleterious effects on the

 2 environment through leaching of heavy metals, as

 3 well as toxic organic compounds. And many -- and

 4 it's especially fragile because many of these

 5 ecosystems throughout the country have already

 6 been fractured by human activity. The only

 7 responsibly acceptable option before us is the

 8 adoption of Subtitle C, which gives a strong

 9 federal regulation of the coal ash storage and

 10 treatment.

 11 Continuing to damage these ecosystems

 12 would be an incalculable loss to ourselves and

 13 future generations because through the knowledge

 14 we gain by studying and examining the different

 15 networks of life and the myriad expressions of it,

 16 we can better and more fully understand ourselves.

 17 In addition to the more direct effects

 18 that the pollution has on the environment, there

 19 are also more subtle effects because of our

 20 inextricable relationship with the environment and

 21 our reliance upon it. So destroying the -- these

 22 ecosystems will have a hugely negative
 349

 1 consequence, many of which will be seen for a long

 2 -- for many years to come and are potentially

 3 irreversible.

 4 So I urge the EPA to adopt Subtitle C

 5 for stronger federal regulations. Thank you for

 6 listening.

 7 MR. BEHAN: Thank you.

 8 SPEAKER: My name is Ari Guerrero. I'm

 9 here representing citizens from Austin, Texas.

 10 I'm really impressed and happy to be here. Today,

 11 I have talked to many people who have traveled 6

 12 to 12 hours in the rain, through flooding to be

 13 here to tell you the message that I wish to

 14 convey. And that is simply that it's time for you

 15 to do the right thing.

 16 I wear contact lenses. Without contact

 17 lenses, I am legally blind. I would not be able

 18 to see the paper in front of me. No one else in

 19 my family wears glasses or has any vision

 20 impairment. I never -- I didn't watch TV as a

 21 child. And doctors tried to figure out why I of

 22 my family had this problem. And it wasn't until I
 350

 1 was 15 that I was told it was because I eat tuna

 2 fish. Tuna fish has mercury. Mercury comes from

 3 coal plants. And I happen to like tuna. And as a

 4 result, I cannot see.

 5 I think it's human nature to not weigh

 6 future consequence -- consequences of our actions.

 7 We don't understand what will happen to -- to

 8 people, to a six-year-old who lives in a town

 9 nearby a coal plant. What effects will the

 10 decisions that our government make have on

 11 citizens -- on private citizens of these

 12 communities surrounding these coal plants. I

 13 think that it's time that we do what's right. And

 14 I'm just asking you to pass Option C today. Thank

 15 you.

 16 MR. BEHAN: Thank you.

 17 SPEAKER: My name is John Cooper, Austin

 18 Lone Star Sierra Club member. I want to first and

 19 foremost thank you and everyone who's been

 20 responsible for the -- allowing the opportunity to

 21 speak here today. But I -- in addition, I would

 22 like to thank you for your attentiveness, your
 351

 1 level of attentiveness. You've really been

 2 listening. I've been out there for a while,

 3 listening myself, also. And this is an extremely

 4 complex and -- and -- and has -- covers a lot of

 5 ground, this issue. And -- and again, I

 6 appreciate your attentiveness.

 7 I would sit there and go, yeah, well, I

 8 want -- I wanted to say that. And yeah, I was

 9 going to say that. And then it was, like, oh,

 10 well, I never really would have thought about that

 11 angle. I really didn't even think about that.

 12 It's been interesting to see some environmental

 13 activists opposed to recycling come up here.

 14 Well, let's end this recycling issue. Okay.

 15 Okay. And then I've see some fine, outstanding,

 16 hardworking American citizens up here defending

 17 their job and the work that they've done,

 18 sanctifying the work that they've done. So this

 19 -- this is an extremely complex issue. And I'm

 20 really not -- I'm really not -- oh, I'm not overly

 21 concerned. And -- and I'm very supportive of

 22 those people. I'm not at all afraid of those
 352

 1 people.

 2 Well, what does, on a serious level, get

 3 my attention -- what I'm afraid of is mercury,

 4 arsenic, lead, and things like that. These

 5 elements, components, compounds are inherent in

 6 the usage of coal to give us our electricity. And

 7 we need protection, environmental protection from

 8 your agency to safeguard all of us. And that is

 9 why I wholeheartedly bequeath you to support the

 10 toxicity and recognize the toxic hazard of coal

 11 ash.

 12 Thank you again for your time. I

 13 appreciate all the effort you're putting into

 14 this. And thank you for everybody who's been in

 15 attendance.

 16 MR. BEHAN: Thank you.

 17 SPEAKER: Hello, I'm Mary Sue Rose. I

 18 -- I'm here with a group from the Sierra Club, but

 19 I really want to bring to bear my growing up in

 20 Charles -- in West Virginia. I had a coal miner

 21 that lived behind my house in Montgomery. My

 22 grandfather was a coal company doctor. My father
 353

 1 was born in -- in a coal community, a very small

 2 town that's now a ghost town, Kaymoor. But he --

 3 then after he got his degree, he went to work for

 4 American Electric Power.

 5 He worked for 42 years in the Canal

 6 River plant on -- on the Canal River, of course.

 7 And he was very proud that -- it's been over 50

 8 years now. He sold fly ash to a company to make

 9 it into cinder blocks. And I -- it was -- now, I

 10 want to look back and see if he actually thought

 11 up the idea or if he got on somebody's bandwagon.

 12 But he was really pleased that because he -- he

 13 thought he was getting -- having another purpose

 14 for the waste material. So I wonder now, he --

 15 I think a lot of people in what we call

 16 the chemical valley along the Canal River had a

 17 lot of health problems. And I feel like they were

 18 related to the coal mining, the -- the electric

 19 power, the chemicals that were all along that

 20 river. And he's been gone quite a number of years

 21 now. He had heart problems and lung cancer. And

 22 I'm wondering if he would have the personal
 354

 1 courage to stand up and say there's something

 2 wrong here and -- and acknowledge that there were

 3 impurities and toxic waste in those cinder blocks.

 4 If he would have been willing to look for another

 5 way to isolate those -- those bad things and still

 6 use the fly ash in a way that we could recycle

 7 them.

 8 So I thank you for listening. And I --

 9 I really feel like we need to stand up and -- and

 10 do something about the toxicity, so that other

 11 people don't have health problems in their lives.

 12 Thank you.

 13 MR. BEHAN: Thank you.

 14 SPEAKER: Good afternoon. My name is

 15 Karen Hadden. And I'm the director of the

 16 Sustainable Energy and Economic Development

 17 Coalition here in Texas. And thank you for being

 18 here.

 19 You may know that Texas has some of the

 20 most polluting coal plants in the nation. Five of

 21 our coal-burning power plants have been at the top

 22 ten for mercury emissions when you look at the
 355

 1 toxic release inventory. We have had problems

 2 with coal ash and we are seeking rules that will

 3 help protect in the future.

 4 In the 1970's, coal ash ponds

 5 overflowed. And this resulted in selenium getting

 6 into Brandy Branch Reservoir and also around

 7 Martin Creek Lake. And as a result, the selenium

 8 levels went up in the fish, the health department

 9 had to issue advisories against eating fish in

 10 those reservoirs. And that has serious health

 11 impacts. Many of the elements in this waste --

 12 arsenic, cadmium, selenium, zinc, manganese,

 13 chromium, nickel, thallium -- these have serious

 14 health impacts. That's why I think Subtitle C is

 15 the best way to go.

 16 These rules need to be strengthened. We

 17 need to prevent problems like this from happening

 18 again. We need federally enforceable standards.

 19 We need to phase out old ponds. We need to

 20 establish minimum standards. And these sites need

 21 to be monitored. State or federal issued permits,

 22 they should -- they should be applying to all coal
 356

 1 ash dumps. And we do need cradle-to-grave

 2 monitoring of all of these sites.

 3 I thank you. And again, there is ample

 4 scientific evidence, as well as plenty of

 5 on-the-ground incidences that justify going for

 6 stringent protection. Thank you.

 7 MR. BEHAN: Thank you.

 8 SPEAKER: Hi, I am Michael Nicodemus.

 9 I'm a professor of environmental science at

 10 Abilene Christian University. I'm not a member of

 11 an environmental group. But there are a couple

 12 things -- what I've been looking at this, teaching

 13 my students about environmental law and policy,

 14 that kind of struck me about this particular case.

 15 One thing that I question is why this --

 16 these wastes wouldn't be considered to be

 17 characteristic wastes under the toxicity

 18 characteristic in the -- in the regulations

 19 already. From the EPA Web site, it says that

 20 toxic wastes are harmful or fatal when ingested or

 21 absorbed, e.g. containing mercury, lead, et

 22 cetera. And it goes on. To me, it seems odd that
 357

 1 wastes that have been known to contain these

 2 things wouldn't automatically fall under that

 3 particular provision of the RCRA.

 4 Some of the people from industry have

 5 complained that -- and rightfully so -- that it

 6 will be a stigmatization of their products if

 7 they're considered to be toxic. And I think

 8 that's a -- that's a sincere argument. But I

 9 wonder if that may not be a bad idea, for things

 10 to be stigmatized, if they are truly toxic. If

 11 the drywall in my house can cause children to

 12 become sick, it could cause me to become sick.

 13 When you tear those things out of my wall, that

 14 causes me to become sick, then it should probably

 15 be stigmatized. It should probably be regulated,

 16 as well.

 17 I don't -- understand it's not under the

 18 proviso of this particular hearing, but I think

 19 also the stigma would also promote alternative

 20 force -- forms of energy, which would help us to

 21 provide for the future energy needs of this

 22 country. I think, you know, if there is a stigma,
 358

 1 if there is added cost to these forms of

 2 electricity, then we may look at other sources of

 3 electricity.

 4 The lady who talked a couple before me,

 5 was from West Virginia. Actually, I'm also from

 6 West Virginia. So it's good to know there's some

 7 other -- some other hillbillies here. But I grew

 8 up 12 miles from a coal-fired -- well, a steel

 9 mill that used coal as part of the steel refining

 10 process in Fallensby, West Virginia. And under

 11 the Clean Air Act, they were grandfathered in, so

 12 they didn't have to change the way that they were

 13 releasing emissions. And it's one of the most

 14 polluted towns in America because of that.

 15 And I think if you use four -- the

 16 Subtitle 4 -- I'm sorry -- D Prime provision that

 17 grandfathers in these wastes, you'll have a lot of

 18 the same kinds of problems. Places that are

 19 obviously doing the wrong thing now that won't

 20 change because the law won't force them to change.

 21 And obviously the states are not going to make

 22 them to change.
 359

 1 So -- and this is just my opinion, but I

 2 think that obviously this should be regulated

 3 under Subtitle C. I don't understand why it isn't

 4 regulated that way already. Thank you.

 5 MR. BEHAN: Thank you. Are there any

 6 other people here that have not spoken and have a

 7 number? Seeing no speakers, we will take a

 8 10-minute break. Thank you.

 9 (Recess)

 10 MR. BEHAN: Good afternoon. We're going

 11 to go ahead and continue with the public hearing.

 12 Is Speaker Number 263 here? If that

 13 person could come forward. 263? Is there anyone

 14 else in the room that would like to speak that has

 15 a number? 120? Sir, if you could come up to --

 16 to the podium, that would be great. 128. Sir, if

 17 you could state your name and affiliation. And

 18 you can start when you like. Thank you.

 19 SPEAKER: I'm Byron Ryder. I'm the Leon

 20 County Judge. And I'm here on behalf of Leon

 21 County, basically.

 22 Again, my name is Judge Byron Ryder, the
 360

 1 current county judge of Leon County, Texas. We

 2 have three coal power -- generating power plants

 3 in the immediate area. And I want to go on record

 4 as saying that I oppose the further regulation of

 5 federal government in these -- in these power

 6 plant.

 7 Specifically, I'm referring to the

 8 regulation of the CCR as a special listed waste

 9 under Subtitle C of the -- of the Resource

 10 Conservation and Recovery Act. The coal-generated

 11 power plants provide an economic engine for our

 12 area, as well as many other related companies that

 13 use by -- the byproducts. The Subtitle C approach

 14 is not supportable given the availability of

 15 alternate, less burdensome regulative --

 16 regulatory options under the RCRA's non-hazardous

 17 material rules that provide an equal degree of

 18 protection from the public health and environment.

 19 In our area, we have been working with a

 20 company that desires to locate near our Jewett,

 21 Texas power plant, and would use our -- the ash

 22 byproduct to provide manufacturing jobs to
 361

 1 approximately 100 people. These would be new jobs

 2 with excellent pay scale and benefit plan. They

 3 are awaiting your decision on whether or not to

 4 build this new plant. In spite of assurances,

 5 though, the administration that regul --

 6 regulations of the CCRs under the Subtitle C would

 7 have no negative impact on the beneficial reuse

 8 market. The mere discussion of reg -- of

 9 regulating CCRs under the RCRA's hazardous waste

 10 program has already produced a negative effect.

 11 Our economy needs this new plant and needs new

 12 jobs.

 13 Also, worth -- worthy of note is the

 14 state environmental protection agencies from

 15 around the nation have repeatedly cautioned the

 16 EPA that the Subtitle C approach for CCRs will

 17 overwhelm the existing hazardous material

 18 capabilities and would -- in our landfills,

 19 further straining the budgets and staff. It makes

 20 no sense to impose adverse consequences on

 21 existing hazardous material programs that the

 22 materials -- material that the EPA has repeatedly
 362

 1 found does not warrant regulation under the C --

 2 the RCRA Subtitle C.

 3 We believe that the operations in our

 4 area take appropriate actions and precautions in

 5 handling the above-mentioned ash, and if they fail

 6 to do so, they should be held accountable.

 7 However, in light of the near unanimous opposition

 8 from the states and certain -- certain -- and

 9 concern expressed by other federal agencies that

 10 would participate in the process, I urge the EPA

 11 not to pursue the Subtitle C option, but the

 12 Subtitle D non-hazardous waste material that

 13 ensures the protection of human health and

 14 resources.

 15 Thank you for your time and

 16 consideration. I look forward and -- to a quick

 17 resolution and response to your -- in this matter

 18 as a procedure for new jobs and industry in our

 19 area. Thank you.

 20 MR. BEHAN: Thank you. 263. Is there

 21 any -- anyone here that would like to speak? Come

 22 forward, sir.
 363

 1 SPEAKER: Hi, I'm Jason Faulk from

 2 Lafayette, Louisiana. And to the EPA, I say,

 3 let's get the price right on coal. You might ask

 4 why isn't that price right. This price of this

 5 coal exists in a fantasy land where the natural

 6 laws of the ecosystem services and sustainability

 7 are in absolute suspension. The true cost of coal

 8 does not exist in our economy. It makes a whole

 9 lot more sense in our economy to pollute my air

 10 and your water and turn that damage into cash and

 11 to preserve those resources.

 12 It came as news to me that coal ash

 13 waste was not covered by the EPA rules as a

 14 hazardous waste, and that my city gets half of its

 15 power from a coal plant 80 miles away that's

 16 polluting the waters of someone else's community.

 17 Talk about out of sight and out of mind.

 18 Now, I grew up in south Louisiana

 19 hearing story after story of all the contamination

 20 that we have had. I suffer from childhood asthma

 21 myself. And we can't eat the fish that we catch

 22 because of mercury pollution. And we know where
 364

 1 that comes from. So I hear about coal ash, and

 2 I'm pretty ticked off that my government's failure

 3 at all levels to deal with this problem.

 4 In Louisiana, we already have our fair

 5 share of pollution. And in fact, we have a lion's

 6 share, and we've had enough. I have two young

 7 nieces now. And should they ever suffer and be

 8 harmed as I was, I'll be outraged. They didn't

 9 ask to be born in -- into a world and a state like

 10 this. They should not have to demand that the

 11 most powerful country in the world history honor

 12 their inalienable human right to have as clean and

 13 healthy an environment as any other little girls

 14 anywhere else in this country or world.

 15 Since 1970, our nation has cleaned up

 16 pollution. Since 1990, we have set rules to guide

 17 industry into preventing that pollution in the

 18 first place and become more efficient so as to

 19 reduce waste creation. And in the process,

 20 preserve our health and that of our environment.

 21 And these two are one in the same.

 22 So again, why isn't the price of coal
 365

 1 right? I have my Pollution Prevention and Waste

 2 Minimization textbook right here. And there's all

 3 kind of talk about mining and tailings and

 4 metalworking, glues, furniture, paint, and

 5 petroleum, RCRA and FIFRA, TOSCA and CERCLA, EFA,

 6 and all that. And there ain't one darn thing in

 7 this book about coal ash. Nothing.

 8 So for the EPA, let's get the price

 9 right on coal and implement some rules under

 10 Subtitle C that will ensure that power plant

 11 operators conduct business as responsible

 12 industrial parties. We must have Subtitle C rules

 13 implemented on coal ash to send to the marketplace

 14 a real signal on the true cost of making

 15 electricity from coal burning. We must send a

 16 real market signal on the price of coal-fired

 17 electricity. And when we do, we're going to

 18 stimulate our nation's effort to use electricity

 19 frugally, to make investments in energy

 20 efficiency, and employ the wide use of our

 21 conserved natural resources above and below the

 22 surface. As long as entitle ourselves to fantasy
 366

 1 land cheap coal, we're going to continue to waste

 2 it. Thank you for your time, gentlemen.

 3 MR. BEHAN: Thank you. Are there any

 4 other speakers in the room? Not seeing any, we'll

 5 take a break until 6:15. Thank you.

 6 (Whereupon, at 5:54 p.m., an

 7 afternoon recess was taken.)

 8

 9

 10

 11

 12

 13

 14

 15

 16

 17

 18

 19

 20

 21

 22
 367

 1 E V E N I N G S E S S I O N

 2 (6:20 p.m.)

 3 MR. DELLINGER: Good evening, and thank

 4 you all for attending today's public hearing on

 5 the Environmental Protection Agency's proposed

 6 rule regarding the regulation of coal combustion

 7 residuals that are disposed of in landfills and

 8 surface impoundments. Before we begin, I'd like

 9 to thank you for taking time out of your busy

 10 schedules to address our proposed rule, and we

 11 look forward to receiving your comments.

 12 This is the third of seven scheduled

 13 public hearings that will be conducted. We had

 14 two very successful hearings last week in

 15 Washington, D.C., and in Denver. The remaining

 16 hearings that are scheduled are in Charlotte,

 17 Chicago, Pittsburgh, and Louisville.

 18 My name is Bob Dellinger. I'm the

 19 director of Materials Recovery and Waste

 20 Management Division in the EPA's Office of

 21 Resource Conservation and Recovery. I'll be

 22 chairing this evening's session of today's public
 368

 1 hearing. With me on the panel are Laurel Celeste

 2 from our Office of General Counsel and Craig

 3 Dufficy and Steve Souders, who work with me in the

 4 Office of Resource Conservation and Recovery.

 5 What I'm going to do now is go over the

 6 rules of how this is going to work. Because there

 7 are many people who have signed up to provide

 8 testimony today, to be fair to everyone, testimony

 9 is limited to three minutes. We'll be using an

 10 electronic timekeeping system, and we'll also hold

 11 up cards that let you know when your time is

 12 getting low. When we hold up the first card, this

 13 means that you have two minutes left. When we

 14 hold up the second card, you have one minute left.

 15 When the third card is held up, you have 30

 16 seconds left. When the red card is held up,

 17 you're out of time and should not continue with

 18 your remarks.

 19 Remember, you can provide any written

 20 material to our court reporter and the material

 21 will be entered into the record. We will not be

 22 answering questions on the proposal. However,
 369

 1 from time to time, any of us on the hearing panel

 2 may ask questions of you to clarify your

 3 testimony.

 4 Our goal is to ensure that everyone who

 5 has come today to present testimony is given an

 6 opportunity to provide comment. To the extent

 7 allowable by time constraints, we'll do our best

 8 to accommodate speakers that have not

 9 preregistered. Today's hearing is scheduled to

 10 close at 9:00 p.m. We will stay longer if a huge

 11 horde of people come in demanding to speak. It

 12 doesn't appear that's going to happen.

 13 We are likely to take breaks to give

 14 speakers that wanted to speak after dinner, you

 15 know, and walk up to speak, so once we run out of

 16 speakers in any given session, we'll take a

 17 10-minute break and see if anybody else will be

 18 coming in to talk.

 19 We'll get started right now. I'd like

 20 to call Numbers 263, 264, 265, and 125. We'll

 21 start with 125 and then go in order with 263, 264,

 22 and 265.
 370

 1 SPEAKER: I want to open by thanking you

 2 for coming to Dallas. When the considerations

 3 were made for the emissions of lead from

 4 coal-fired plants, you didn't show up in Dallas.

 5 So I applaud your recognition of our great state

 6 of Texas and our ability to burn coal.

 7 I have not heard any previous sessions,

 8 but I assume that those people have been asking

 9 you to clean up the water, clean up the downstream

 10 pollution and the air problems that coal ash

 11 contributes. Basically what they were trying to

 12 ask you for was a conversion of the indirect costs

 13 to direct costs to burn coal.

 14 Now, we all know that when you burn

 15 coal, you've got to go buy the land, dig the coal,

 16 transport it, build a power plant, burn the coal,

 17 collect the ash, dig another hole, put it in, and

 18 so forth. Those are all the direct costs.

 19 The indirect costs are represented by

 20 groundwater pollution, health costs and increase

 21 of people around, as well as the wildlife that has

 22 got problems, and the life expectancy of both
 371

 1 people and animals goes down.

 2 Basically, all we're asking you to do is

 3 to level the playing field. Make sure that the

 4 people who are in the business of providing energy

 5 using coal are paying all the costs and at the end

 6 of the day the environment and the society have

 7 had negligible impacts made upon them from the

 8 activities of that energy generation.

 9 Now, basically what will happen when you

 10 write those kinds of regulations, the indirect

 11 costs will be converted to direct costs, and those

 12 will be reflected in the cost of the electricity

 13 that people will be buying, and then there will be

 14 more -- the market will be better equipped to

 15 determine which is the better energy source, coal

 16 or some other alternative. It's really a simple

 17 economic requirement or a simple economic

 18 equation.

 19 Without the EPA doing the good job that

 20 I know you can do, it will continue to be borne by

 21 the society and the environment. Thank you very

 22 much.
 372

 1 MR.Dellinger: Number 263.

 2 SPEAKER: Hello. My name is Eva

 3 Hernandez. I work with the Sierra Club. I work

 4 here in Texas for the Beyond Coal campaign.

 5 When I talk to people about coal ash, a

 6 lot of people, you know, right off the bat don't

 7 know what it is, what that means. When I start to

 8 explain what it is and how there is very little

 9 state regulation and no federal regulation, people

 10 have mixed reactions.

 11 Some people are shocked. Some people

 12 are -- some people take it personally because of

 13 the impact it has on their own lives. Some people

 14 are infuriated; they want to know what they can do

 15 about it and how this seemingly -- you know,

 16 something that's regulated just like household

 17 garbage, that's a toxic waste, can be allowed to

 18 go unregulated, and people want to know what they

 19 can do about it.

 20 That's why you see people who show up

 21 today drive from Oklahoma, Arkansas, Louisiana,

 22 and from around the state, to ask you to choose
 373

 1 Option C, the strong option, to really regulate

 2 this as the hazardous waste that it is.

 3 You know, this is really important for

 4 us here in Texas. You know, it's a very important

 5 issue around the country, but here in Texas we

 6 have 17 coal plants around the state, some of the

 7 dirtiest in the country, because our state agency,

 8 the TCEQ, Texas Commission on Environmental

 9 Quality, has done a pretty poor job of actually

 10 protecting our health and well-being.

 11 So it's really important that, you know,

 12 people have come here today to ask you to choose

 13 the strong option in regulating this toxic -- this

 14 toxic waste, so that the coal industry is actually

 15 paying for the true cost of operating and they're

 16 actually paying to clean up some of their mess, so

 17 that we're not the ones paying for that with our

 18 health care costs and with dirty water and dirty

 19 air, which is another external cost.

 20 Now, we have 12 coal plants in various

 21 stages of proposal and permitting around the state

 22 of Texas. This is a bad idea. We already produce
 374

 1 more coal ash -- we burn more coal than any other

 2 state in the country, coal and lignite, and we're

 3 number two as far as states around the country in

 4 the number and the amount of coal ash waste that's

 5 produced. So the last thing that we need is a

 6 dozen other coal plants around the state,

 7 especially when you look at how poorly regulated

 8 this industry really is.

 9 We believe strongly that if the coal

 10 industry had to really pay for the cost of

 11 operating a coal plant, we wouldn't see these

 12 dozen coal plants proposed around the state here.

 13 We have people around the state that are fighting

 14 these coal plants because of their health and

 15 because of the impact it will have on their

 16 livelihoods.

 17 I ask that you choose the strong option,

 18 the Option C, to really regulate this as the

 19 hazardous waste that it is. Thank you.

 20 MR. DELLINGER: Thank you. Number 264.

 21 Please state your name.

 22 SPEAKER: I'm Mark Peters, from Hurst,
 375

 1 Texas, and I call -- I'm actually here to speak

 2 against the current status quo and ask that you do

 3 as much as you possibly can to address coal ash

 4 and regulate it as aggressively as you possibly

 5 can.

 6 Acceptance of coal ash is a moral crime

 7 done by the many to the less many living in many

 8 rural areas near these dumps. Let's be honest.

 9 If these trucks were going down, say, Downtown

 10 Dallas, New York City, Chicago, spewing ash off

 11 the back of the truck, do you really think we

 12 would be having this discussion at this time? We

 13 would not. The problem would be fixed and fixed

 14 very quickly.

 15 For the same reason the coal plants are

 16 put in remote locations and their waste is

 17 obviously moved to other more remote locations, it

 18 becomes, well, where there is less people, less

 19 complaints. I think that it should be regulated

 20 as the hazardous material that it is, for,

 21 obviously, the pulmonary reasons, the water

 22 contamination reasons.
 376

 1 One issue that I should touch on real

 2 quickly, because I am a Texan, is that states,

 3 particularly Texas, have exempted most or all coal

 4 ash regulations. We have a long history of

 5 questionable environmental regulation here in

 6 Texas. I won't go into that given the time

 7 constraints that we have.

 8 Personally -- from my personal

 9 perspective, I actually take out my wallet at the

 10 end of the month and spend more for power, because

 11 we have deregulated electricity here. So I have

 12 100 percent pollution-free power. I do that

 13 because this isn't a planet I own; I simply borrow

 14 it from those that follow us.

 15 When I take my wallet out and do that, I

 16 do that because it's the right thing to do. I ask

 17 that you guys and girls, as members of the

 18 Environmental Protection Agency, do not what's

 19 politically or economically expedient, but what is

 20 right by future generations.

 21 In closing, the EPA stands for

 22 Environmental Protection Agency. Please, I beg
 377

 1 you, for those that can't come today but would be

 2 here if they could, resist industry pressure,

 3 stand up for the environment, and regulate coal

 4 fly ash as the hazardous waste that it is. It is

 5 the right and the moral thing to do.

 6 Thank you for coming to Dallas-Fort

 7 Worth and visiting us here and also asking for our

 8 input. In many, many other countries this doesn't

 9 happen. It just gets done; in terms of whatever

 10 they want to build, gets built. So thanks for

 11 taking the time with many, many hours, actually,

 12 to listen to our comments. Appreciate it.

 13 MR. DELLINGER: Thank you. Number 265.

 14 SPEAKER: Hello. My name is Lydia

 15 Avila. I am brand-new at the Sierra Club. I just

 16 started working there. I actually moved from Los

 17 Angeles, having never been in Texas before in my

 18 entire life. I've been down here two months, and

 19 quickly I've learned a lot about the coal

 20 industry, which is not as much of a problem as it

 21 is here in Texas -- in California.

 22 One of the things that I have been
 378

 1 thinking about when I was thinking about the lack

 2 of regulation of coal ash was the fact that I

 3 remember when I was about 6 or 7 -- like 7 or 8

 4 years old, there was this recall on a candy that

 5 came from Mexico, because it had lead in it. My

 6 mom was like, don't eat that anymore, never. She

 7 scared me so much that to this day I don't eat it,

 8 even though I don't think it has it anymore. To

 9 this day, I still don't eat that candy. Back

 10 then, it was like this big thing; they take it out

 11 from all the stores.

 12 I'm stopping now and thinking, if the

 13 FDA can catch that and there is such a big deal

 14 about getting that candy away from kids because

 15 it's lead, it's bad for your body, and, you know,

 16 a lot of problems that y'all have already heard of

 17 all day today, then why haven't we done this with

 18 coal ash? Why isn't this regulated? It's in the

 19 coal ash, and there is many other things in there

 20 that are poisonous to our body, and the fact that

 21 we haven't yet addressed this, like, is a big flag

 22 for me.
 379

 1 I think that -- you know, I get the

 2 industry pressure, but I just think that it's

 3 absurd that anybody could even argue it not being

 4 regulated. Like, it just doesn't make sense to

 5 me. I'm here today to ask you all to please, you

 6 know, take that into consideration and, you know,

 7 have it regulated under Subtitle C, because it

 8 just seems like the very, very logical thing to

 9 do.

 10 Common sense will tell you that

 11 something that has these elements, these chemicals

 12 in it, these toxic chemicals in it, just shouldn't

 13 be anywhere near kids' water, kids' air, anybody

 14 really, not just kids. Anybody. That's pretty

 15 much it. Thank you.

 16 MR. DELLINGER: Thank you. Is there

 17 anybody else here who has registered to speak?

 18 We'll take a 10-minute break. We're going to be

 19 here until 9:00.

 20 (Recess)

 21 MR. DELLINGER: We're going to start up

 22 again. We have at least one speaker that I'm
 380

 1 aware of that has -- is in the room. Can -- is

 2 there any -- is any -- is anybody here with a --

 3 that has a number in their hand that wants to

 4 speak? Okay. Number 266. Remember to state your

 5 name.

 6 SPEAKER: My name is Mark McCord. I'm a

 7 member of Dallas Downriver Club. We're an outdoor

 8 recreation club, primarily canoers and kayakers.

 9 I've prepared some statements that I wanted to

 10 make tonight. But in reading information that was

 11 passed out here, I see something that just strikes

 12 me as absolutely absurd. And I'd like to make a

 13 comment on it and perhaps get somebody to think

 14 about this.

 15 I'm reading here, regarding the

 16 approaches by -- proposed EPA that would leave in

 17 place the Bevill exemption for beneficial uses of

 18 coal ash and coal combustion residues as recycled

 19 com -- as components of products instead of placed

 20 in impoundments or landfills. And it states large

 21 quantities of coal ash are in use today in

 22 concrete, cement, wallboard and other contained
 381

 1 applications that should not involve any exposure

 2 by the public to unsafe contaminates. Whoever

 3 wrote that is an idiot. Anybody that knows

 4 anything about construction knows that if you're

 5 using wallboard, somebody is using a saw and

 6 they're cutting that wallboard. And when they do,

 7 it's presenting contaminates that float up into

 8 the air that are going to be breathed by those

 9 people who were cutting that. I cannot believe

 10 that anybody at EPA would be so naive as not to

 11 understand that.

 12 We only have one environment. When it's

 13 destroyed, we're history. We as a people are

 14 gone. I don't understand why this meeting is

 15 taking place for one reason. There's no question

 16 that all these contaminates in coal ash are

 17 unhealthy. Everybody knows that. Why should

 18 there have to be a public discussion to debate

 19 whether or not we need to regulate these things.

 20 It seems to me that the EPA as a government body

 21 -- that we're paying taxpayer dollars for salaries

 22 -- should be taking the lead role and -- and going
 382

 1 after regulation on these things. They should not

 2 be listening to lobbyist and other people from

 3 industry who never give a truthful explanation for

 4 anything but instead are involved only in one

 5 thing, protecting shareholder equity and corporate

 6 profits.

 7 Now, it seems to me that the EPA needs

 8 to take the bull by the horns and decide when you

 9 have an issue that's as critical to safety of --

 10 of everybody living in this country as

 11 contamination of water, air, or soil that the EPA

 12 ought to be taking an -- a proactive role and

 13 going after everything necessary that they can do

 14 to control these industries that profit from these

 15 businesses they do, and make sure that they are

 16 accountable 100 percent of the time for the things

 17 they do. And that includes repayment to the

 18 government of any expense incurred in enforcing

 19 regulations or laws that are meant to protect the

 20 public. I would ask the EPA to strongly consider

 21 a pol -- a policy that in the future does not give

 22 credence to the people who are in business, but
 383

 1 rather protects the citizens of this country.

 2 Thank you.

 3 MR. DELLINGER: Thank you. Does anybody

 4 else have a number?

 5 SPEAKER: I had one from 6:15. 124,

 6 yeah. But I was signed in for the last session,

 7 so --

 8 MR. DELLINGER: That's no problem at

 9 all.

 10 SPEAKER: Thank you. My name is Bud

 11 Scott from Oklahoma City, Oklahoma. I am the

 12 director of the Oklahoma Sierra Club. And I want

 13 to thank you all tonight for taking your time and

 14 giving the public the opportunity to comment on

 15 this very important issue, which is detrimental to

 16 our public health, safety, and economic

 17 development.

 18 In Oklahoma, as you've heard throughout

 19 the day, we've had several issues of contamination

 20 related to coal combustion waste. This has been

 21 documented by both our Oklahoma Department of

 22 Environmental Quality and by some of our
 384

 1 independent folks from the Bokoshe community.

 2 We've seen a massive impact on public health to

 3 these areas. Not just with public health, but

 4 also with groundwater contamination, surface water

 5 contamination, and permanent surface

 6 contamination, as well.

 7 I urge you guys to adopt the Subsection

 8 C option and classify coal combustion waste as a

 9 hazardous substance. It's the best option that we

 10 have. It's the most logical option. I highly

 11 encourage the adoption of this through the EPA.

 12 And thank you all for that consideration.

 13 Another point that I really want to

 14 point out is -- and it's been mentioned a few

 15 times tonight. If we want to make a transition

 16 into a true clean energy economy, it's absolutely

 17 essential that we start to recognize the

 18 externalized costs that are incurred with the coal

 19 industry in the United States. Most of them are

 20 paid on behalf of the taxpayer by public health

 21 and our environment. As a proponent of

 22 alternative energies such as wind, solar, biomass,
 385

 1 we're never going to have an even playing field

 2 until all these costs are put on the table and it

 3 represents the true cost of coal-fired generation.

 4 So for those -- for those very reasons,

 5 I hope that you adopt this rule and classify this

 6 as a hazardous substance. And thank you for your

 7 time.

 8 MR. DELLINGER: Thank you. Anyone else?

 9 We'll take another 10-minute break. And we'll

 10 reconvene at -- we'll reconvene at, let's say,

 11 7:10. That will be a 12-minute break.

 12 (Recess)

 13 MR. DELLINGER: The ten minutes is up.

 14 Is any -- is -- does anybody have a number and

 15 wants to speak? If not, we're going to do a

 16 15-minute break this time.

 17 (Recess)

 18 MR. DELLINGER: The hearing is now

 19 reconvened. Number 269. And if you -- if you can

 20 state your name.

 21 SPEAKER: My name is Carol Nash. And

 22 I'm a citizen here in Dallas. And I work as a
 386

 1 teacher for Dallas ISD. And I just saw the --

 2 kind of an amazing, shocking movie next door about

 3 Oklahoma, the town of Bokipse, I think -- Bokipse

 4 [sic]. I can't remember the name. And I didn't

 5 really know too much about the issue coming up,

 6 but we do have a lot of coal burning issues around

 7 Dallas, Texas. But the whole fly -- the coal ash

 8 things was something I'd never really thought

 9 about.

 10 But the movie was truly shocking and

 11 horrifying. And so I would like to just add my

 12 comments that we should definitely regulate this

 13 as a toxic product. And that the people there are

 14 just -- the health hazards, the water

 15 contamination, air contamination, it was truly

 16 shocking. So that's my comment.

 17 MR. DELLINGER: Thank you. Any more

 18 numbers? Another 15 -- another 15-minute break.

 19 All right. We'll -- we will reconvene at 7:45.

 20 (Recess)

 21 MR. DELLINGER: Number 267.

 22 SPEAKER: Hi, I -- sorry? Yes, my name
 387

 1 is Anne Mai. And I'm a student at UTA. I just

 2 watched the video, and I thought it was really sad

 3 that that stuff is happening. I'm sorry. I

 4 didn't think I was going to get emotional.

 5 Okay. Anyway, I watched it and I was

 6 really shocked because I just started my major as

 7 an environmental -- environmental engineering

 8 major, and it really shocked me that they don't

 9 regulate this stuff. Like, they regulate

 10 household waste more than they regulate this

 11 stuff.

 12 So I think that it's -- it is just

 13 really shocking to me because I haven't even taken

 14 any environmental engineering classes yet. I just

 15 started my basics and stuff. And I personally

 16 feel that it's just common sense to label this as

 17 hazardous. So I just -- I urge you to please

 18 classify coal ash as hazardous under the Sub --

 19 Subtitle C. And -- yeah, please do it. Thank

 20 you.

 21 MR. DELLINGER: Do we have another

 22 speaker?
 388

 1 SPEAKER: Hello, my name is Electra

 2 Thornburg. I'm with the Environmental Society at

 3 the University of Texas at Arlington. And after

 4 seeing the video, I was very, very, very surprised

 5 that this coal ash is not labeled as hazardous

 6 waste, which is -- which is just beyond

 7 comprehension.

 8 I feel it would be best that this is

 9 regulated under Subtitle C and that the EPA makes

 10 an example to show that the -- to show that they

 11 can act and protect people's health and families

 12 and communities. And that that -- that's what's

 13 important, so please support Subtitle C. Thank

 14 you.

 15 MR. DELLINGER: Thank you. Any more

 16 speakers?

 17 We'll reconvene in 15 minutes, unless

 18 some speakers come in sooner. Let's make it 7:50.

 19 (Recess)

 20 MR. DELLINGER: Does anybody want to --

 21 does anybody want to speak? It's 7:50 right now,

 22 so we're -- we reconvened. But if there are no
 389

 1 speakers, we will again do a 15-minute break.

 2 So we will reconvene at -- let me see

 3 here -- five minutes after 8:00.

 4 (Recess)

 5 MR. DELLINGER: Number 270. Remember to

 6 state your name.

 7 SPEAKER: My name is Jennifer Alig. And

 8 I am here as a private citizen and an energy

 9 consumer. I just wanted to talk with you guys for

 10 a little bit about what I feel about the coal ash

 11 dumps that -- that so many of us have heard about

 12 recently.

 13 I am very much in favor of a very strong

 14 rule regulating coal ash dumps. I do think that

 15 it's, you know -- it is -- it's something that is

 16 obviously, you know, causing people that live near

 17 these dumps some issues. You know, I -- I'm very

 18 tired of hearing about possible cancer clusters in

 19 people that live near some fly ash dumps. You

 20 know, I -- I don't want to hear about people's

 21 livestock dying, you know, as soon as they're

 22 born. And, you know, basically, drinking out of
 390

 1 the ponds that are next to these dumps. That's --

 2 it's something that's very important to me.

 3 You know, as an energy consumer, I do

 4 not want energy that I'm using at my home or at my

 5 work to be subsidized by the health or even the

 6 lives of people that live near coal ash dumps.

 7 It's something that I'm willing to pay more for as

 8 an energy consumer to have increased regulation.

 9 And it's just -- it's something that I

 10 very strongly support a very strong rule. I hope

 11 that you guys will -- or I hope the EPA will

 12 advocate for a very strong rule and write a strong

 13 rule regulating fly ash dumps. That was all.

 14 MR. DELLINGER: Thank you.

 15 SPEAKER: Thank you so much. I

 16 appreciate it.

 17 MR. DELLINGER: Are there any more

 18 speakers in the room? All right. We'll take

 19 another break until somebody shows up.

 20 (Recess)

 21 MR. DELLINGER: Your number is 271?

 22 SPEAKER: Okay.
 391

 1 MR. DELLINGER: Is that right?

 2 SPEAKER: I don't know. They told me to

 3 just walk in.

 4 MR. DELLINGER: Did you sign in at the

 5 desk?

 6 SPEAKER: I just signed in, yes.

 7 MR. DELLINGER: Okay. Thank you. And

 8 please state your name.

 9 SPEAKER: Sure. My name is Flavia De La

 10 Fuenta.

 11 All right. My name is Flavia De La

 12 Fuenta. And I'm a resident of Austin, Texas. I'd

 13 like to applaud the EPA for recognizing the very

 14 real health and environmental risks posed by toxic

 15 coal ash. Given the seriousness of these risks,

 16 enforce -- enforceable federal safeguards, not

 17 suggestive state guidelines are necessary to

 18 protect our communities.

 19 Both the EPA and the National Academy of

 20 Sciences years of research showing that coal ash

 21 is becoming increasingly toxic, which is why

 22 strong federal safeguards need to be issued
 392

 1 quickly before more communities are exposed.

 2 Effective regulations should require basic

 3 protections for communities such as composite

 4 liners, water runoff controls, groundwater

 5 monitoring, and financial assurance that companies

 6 pay to clean up what they pollute.

 7 The Subtitle D status quo option, option

 8 of suggested state guidelines, is not really

 9 substantially different from current policies and

 10 will definitely result in few, if any, changes in

 11 the state of Texas. The commonsense steps

 12 suggested in EPA guidelines are not new, neither

 13 is the idea that the industry should be taking

 14 these basic precautions. Knowing has not equaled

 15 doing, and the State of Texas will probably not do

 16 so without federal enforcements.

 17 Under strong option Subtitle C,

 18 recognizing that coal ash is substantially more

 19 dangerous than household garbage and regulate it

 20 -- regulating it like the toxic substance that it

 21 is will benefit communities and environments

 22 across the country. The commonsense guidelines
 393

 1 backed up by federal enforcement and financial

 2 accountability provide much needed environmental

 3 and public health safeguards.

 4 As a citizen of Texas, I strongly urge

 5 you to adopt strong option Subtitle C. Thank you.

 6 MR. DELLINGER: Thank you.

 7 (Recess)

 8 MR. DELLINGER: The hearing is

 9 officially closed.

 10 (Whereupon, at 8:57 p.m., the

 11 PROCEEDINGS were adjourned.)

 12

 13 * * * * *

 14

 15

 16

 17

 18

 19

 20

 21

 22
 394

 1 CERTIFICATE OF NOTARY PUBLIC

 2 I, Carleton J. Anderson, III do hereby

 3 certify that the witness whose testimony appears

 4 in the foregoing hearing was duly sworn by me;

 5 that the testimony of said witness was taken by me

 6 and thereafter reduced to print under my

 7 direction; that said deposition is a true record

 8 of the testimony given by said witness; that I am

 9 neither counsel for, related to, nor employed by

 10 any of the parties to the action in which these

 11 proceedings were taken; and, furthermore, that I

 12 am neither a relative or employee of any attorney

 13 or counsel employed by the parties hereto, nor

 14 financially or otherwise interested in the outcome

 15 of this action.

 16 /s/Carleton J. Anderson, III

 17

 18

 19 Notary Public in and for the

 20 Commonwealth of Virginia

 21 Commission No. 351998

 22 Expires: November 30, 2012