UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

OFFICE OF RESOURCE CONSERVATION AND RECOVERY

OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE

PUBLIC HEARING ON EP A'S PROPOSED RULE ON

Hazardous and Solid Waste Management System;

Identification and Listing of Special Wastes;

Disposal of Coal Combustion Residuals from

Electric Utilities

DOCKET ID NO. EPA

- HQ

- RCRA

- 2009

- 0640

Dallas, Texas

Wednesday, September 8, 20102

1 PARTICIPANTS:

2 EPA Hearing Panel:

3 Morning Session:

4 ROBERT DELLINGER, Chair

Director of Materials Recovery and Waste

5 Management

Office of Resource Conservation and Recovery

6

LAURA CELESTE

7

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 Co nservation and Recovery. I will be chairing

22 this session of today's public hearing. With me4

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 provid e 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 t he 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 contami nants 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 produ cers. 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 used5

1 in minefill operations. EPA estimates that there

2 are approximately 300 landfills and more than 600

3 surface impou ndments 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 l andfills 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 heal th 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 Act6

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 scen ario,

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 conc erns 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 all7

1 stakeholders. Therefore, we ask th at 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 a lter

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 propos al 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, informa tion, 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 sand8

1 and gravel pits, quarries, and other large

- scale

2 fill operations are not exampl es 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 move9

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 re d 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 entere d into

20 the record.

21 We will not be answering questions on

22 the proposal. However, from time to time, any of10

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 to day, 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 everyo ne 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 ha ve 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 pres ent your comments orally, we have prepared a

22 table in the lobby where you can provide a written11

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 i f 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 Coalitio n, 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 th e

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 crit erion 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 straight13

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 bey ond 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 done14

1 right and implem ent 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 EP A

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 chair man of Citizens for Recycling First, an15

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 produc tion

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 environmental16

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 as h 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. Recyclin g 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 t he

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: Ye s.

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 y ou.

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 fly19

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 betw een 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 which2 0

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 ex plain

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, mo ney, 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 lan d.

21 We keep finding the pea in the shell

22 game, but like a con man who has your money, the21

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 Oklah oma,

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, co uld we have22

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

2 SPEAKER: Good morning. My name is Earl

3 Lott. I'm the directo r 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 i n 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 around23

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 tha t

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 i n 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 bigge st

21 problems with state regulations of fly ash in

22 Bokoshe, Oklahoma, is that they call the mounds of25

1 fly ash mine reclamatio n. 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 acre s. 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 Inhofe26

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

2 and met with Senator Inhofe's staff and explaine d

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 lett er 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 wa stewater

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 nee d 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 e liminate this27

1 environmental injustice for the people of Bokoshe,

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

3 Subtitl e 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 p rotested

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 property28

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 pa rt 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 th e people from Bokoshe should be

21 allowed to speak, and the Tulsa World reported on

22 Bokoshe's presentation.29

1 The exp osure 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 pub lic 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 s taff 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 Cle an 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. O DEQ refuses to enforce laws

22 until public exposure forces it to act, but once30

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

- burnin g 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 i nto 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 acro ss 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 of31

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

1 6 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 Int ernet, and I got together and

21 we researched fly ash and educated ourselves, and

22 from that the Bokoshe Environmental Group was32

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 t he 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 s ome 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 USWA G , 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 Bevi ll 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 CC R34

1 disposal units. These regulations would be

2 directly enforceable by the states and the public,

3 and violators would be sub ject 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 c ited 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 analogy35

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 less36

1 controversial, yet equally protective, Subtitle D

2 non

- hazardous waste program. Thank you.

3 MR. DELLINGER: Thank you. Number 200.

4 SPEAKER: Good m orning. 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 de dicated 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 ext remely 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 r enders 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 dura ble and an

21 environmentally stable material that permanently

22 immobilizes its chemical constituents in a glassy37

1 amorphous whi ch 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 sl ag 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 informat ion 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 wast e 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 threshol d or regulation under Subtitle C, and we

22 are not aware of any environmental problems linked38

1 to our products.

2 As a n 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 r egulating 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 t wo 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 Subtitl e 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, pa nel. 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 Sierra39

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 S ierra 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 proper ly regulat e 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 your40

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 h uman 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 Scien ce s have years

22 of research showing that toxic coal ash is41

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 indust ry 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 installi ng 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 danger ous

22 characteristics, it is currently less strictly42

1 controlled than household garbage. That's right.

2 Coal ash is contaminat ed 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 ha zardous. It's poisonous. Please regulate it as43

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 ind ustry 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 struc tures; 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 to ns 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 exten sive 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 retain ing exemptions for beneficial use, will lead

21 to the following unintended consequences for the

22 concrete industry: One, an increase in production45

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 e xempt 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 An geles

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 resid ents 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 t o the prevention of the47

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 did48

1 listen.

2 The next morning they had a meeting.

3 The executive director had a meeting with the head

4 of t he 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 call ing

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 S ubtitle 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 EPA49

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 b e 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 of50

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 elev ated.

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 disabilitie s. Mercury causes51

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 reclam ation, 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 for52

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 wast e. 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 secon d 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 talk s 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 speciali zes in selling extraordinarily

22 dangerous products directly to consumers.53

1 Electricity, natural gas, and gasoline can

2 acciden tly 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 an d 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 lar gest 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 service54

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 protecti ve 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 CCR55

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 op erating.

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 adm its 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 impli cations 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 with56

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

1 3 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 our57

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

- fire d 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 public ly 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 consu mers, 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 aven ues. 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 D59

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 propos ed 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 w henever 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 sur face mining under the

20 federal Surface Mining and Reclamation Enforcement

21 Act.

22 In closing, Dynegy supports the federal60

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 th at 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 comp osite 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 ge osynthetic clay liner. A composite liner

22 system prevents the leachate from entering the61

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, e ngineering

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. O ver the years, EPA has62

1 commissioned nearly 80 studies of the design and

2 performance of lining systems. We specifically

3 cal l 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 informatio n 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 cyc le 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 pro tect 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 lacks63

1 the traditional characteristics of hazardous

2 materials, radioactivity, or the presence of

3 infectious medical waste, et cetera. In the

4 opinio n 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 M R. 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 Utility64

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, knowl edge, 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 foun d 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 p ast 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 abi lity 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 witnessed65

1 anxious citizens chal lenging 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 imp lications. 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 Zore nda. 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 I67

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 thro w 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 n ot 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 countr y needs from a

21 standpoint of making sure these materials are

22 safely stored, but not creating a hazardous stigma68

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 caref ul 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 addre ss

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 other70

1 raw materials in the body of our finished product

2 for over 25 years. In the c ase 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 mak ing 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 prod uce 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 volume71

1 of virgin raw materials and millions of cubic feet

2 of natural gas. Our utilizat ion 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 CMU s

.

14 During the

-- the process, CCRs are incap sulated

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 were72

1 able to utilize CCRs and overcome potential market

2 impacts associated with using waste designated

3 under Subtitle C, would likely requ ire 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. San73

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 c onstructed 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 Sub title 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 regul ating 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 state75

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 comm unity. 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 t hat 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 Department76

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 neighb or 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 of77

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 caus ing

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 p ersonal 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 EP A 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 the y 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 co ncerns 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 runoff79

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 illn esses,80

1 neurological damage and developmental problems.

2 Children are more susceptible to the health impact

3 of coal ash, a di sturbing 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, whic h

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 service s 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 current81

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 publi c 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 th e best, safest, and most

9 responsible reuse of coal as h currently known. If

10 the EPA attaches a hazardous label to coal ash

11 byproducts, the industries that we supply

12 equipment to will b e 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 produ ct 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 you r 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 o f

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 oppositio n. 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 precas t, 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; import ant benefits such as reduced water

22 usage, improved concrete resistance to chemical83

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 concep t through construction, they are part of84

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. Th e 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 the85

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 enfor cement 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 addition al 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 ov er 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 t o 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 a re

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 much87

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 Resour ces, 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 durabilit y 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 si gnificantly 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. You89

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 signif icantly

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 and90

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 a re 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 disposal91

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, l ead, 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 site s, 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 eate n, 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 behavio ral 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 from92

1 drinkin g 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

1 0 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 p lants. 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 disposal93

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 ha s 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 marketing94

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 co al 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 haza rdous 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 specifyi ng

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 tr emendous 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 combust ion products.

21 When the beneficial uses are lost under

22 this reclassification, we will also lose the95

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 ma nufacturing 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 combu stion

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 combus tion

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 to96

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 coa l 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 typically97

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

1 2 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

1 6 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 dealin g 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't98

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 sa me

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 ov er 50 years.

21 And certainly, we are supportive of the effort to

22 protect the environment and human health. There's99

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 mate rial

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 of100

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 produ cts 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 w as 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 highways102

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. I n

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 mana gement 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 byproduc ts for over five decades.

22 We support the EPA's efforts to protect103

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 p rojects 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 e ffect 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 recyc ling 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 Re covery 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 Little105

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, deca des

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 k eep 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 that106

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

-- beca use 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. A nd 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 believe107

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 a108

1 less quality product w ithout 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 w ill 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 with109

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 have110

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, w ith 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 supp lies. It is being put111

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 th an 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 fro m 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 sm all 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 his112

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 wa s 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 tha t'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 de adly, 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, hoping113

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 lon g 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 r oads 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 neg ative 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 Com panies of Texas, or AECT. We are115

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 v ery 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 populatio n 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 hedge116

1 the benefits and challenges inherent in each of

2 these fuel sources.

3 Baseload coal generation accounts for

4 about 38 percent of th e 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, un economic, 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 region s of the country, is experiencing record

21 electricity demand and sustained growth.

22 Across the industry, the proposal for117

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 that118

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 ruli ng

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 ful ly

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 a119

1 hazardous waste would have significant negative

2 consequences that could potentially un do 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 i n 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 concret e.

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 the120

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 respectfu lly 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 sup ervisor 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 e nsure that our power plant complies with

22 Texas Commission on Environmental Quality's coal121

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 employ ees, 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 industri es, as you heard, as well as in oilfield122

1 projects and for road paving.

2 There is a long list of projects across

3 ou r 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 C CRs. 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 benef icial 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 r egulation 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 Co lorado River.

22 We evacuated for Ike. We evacuated for125

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 breat hing, 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 t he 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. I126

1 work for CPS Energy in San Antonio. We are

2 municipally owned. We're the largest municipally

3 owned power electric and gas compan y 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 yard s 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 2008127

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: M y 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 my128

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 durab ility, 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 signi ficantly 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 ash129

1 produced.

2 To me, whether you're a salty old

3 politician that's been r unning 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 as h 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 I n 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 the130

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 T his 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 Cajun131

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 than k 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 our132

1 environment. The fact that toxic heavy metals

2 that are associated with coal as h 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 severel y

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, tempo rary 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 classroom133

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 gre w 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 used134

1 th eir 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 them selves. 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 after noon. 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 govern ment 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 publi c, freely accessible. Thank

22 you for that.135

1 I want to commend you also for

2 recognizing the very real health and en vironmental

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 com munities.

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 int o 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 include136

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 r egulation 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 w hy 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 rul e

- 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 written137

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 unhea lthy 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 protec t 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 toxins138

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. Mone y 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 Fayette139

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 l andowners 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 identifi ed 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, w e invariably find140

1 contamination at virtually every coal ash pond and

2 landfill currently operating.

3 The Electric P ower 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 war ned 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, 215141

1 a nd 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 F ayetteville, 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 o f 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 the re.

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 the re. 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 proce ss 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 dec ision

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 f aces.

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 to143

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 this144

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 an y 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 s ubstance.

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 Brow n 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 busines s 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 of145

1 all electricity

-- all electric energy, not just

2 that produced by coal

- burning plants, would

3 increase unnecessarily.

4 I ask you not t o 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, ma naging, 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 numb er

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 fe el 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 unfortunat e

--

21 MR. DELLINGER: Can you state your name?

22 SPEAKER: Oh, I'm sorry. My name is146

1 Jordan Bantuelle, an d 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 manpo wer 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 fa ct 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 maximum147

1 level, and lead exceeding the maximum contaminant

2 level.

3 All o f 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 cou ld 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 pon d 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 gettin g 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 L ouisiana 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't148

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. We ll, 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 C ounty, 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 Gu lf 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 southern150

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 ca n 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 b een

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 ou r 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 regulate151

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 mor e and more power plants south of

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

22 included in the non

- attainment air area. Power152

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 a ffect 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 calle d 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

1 7 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

22153

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 Recove ry 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 those154

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 electronic155

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 h ave 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 g roup 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 cou rt

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 you156

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 prese nt 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 prep ared 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 be157

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 N umber 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 w e talked to, approximately 12 of 15159

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 hi gh

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 downstr eam 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 the160

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 earth161

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 th em 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 cha llenges 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 m ade them a real part of the world.

22 Today, Western Farmers is able to162

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 in cidents

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 F irst, 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 bu sinesses suddenly increase, like they would if163

1 CCR is more stringently regulated, there's little

2 or no cushion to mitigate the increased cost s, 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 coa l

- 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 to164

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 a s non

- hazardous waste by the states is

18 the appropriate option for ensuring the safe

19 management of these materials while preservi ng

20 reuse.

21 The state of Texas, through the Texas

22 Commission on Environmental Quality, already has a165

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 hundred s

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 An y 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 i ncrease 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 regulat ion 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 Houst on. 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 const ructed 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. Th e 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 experience167

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, T CEQ 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 simpl y 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 protect168

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 o r

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 reg ulations, 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

1 6 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 t hat 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, if169

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 intern al

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 posi tion of coal ash waste is not

22 regulated in the state. Fly ash is regulated in170

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 ta lk 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 oversigh t 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 Environme ntal 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 hea vy

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.

1 6 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 woul d 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, wou ld 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 su re 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 is173

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 pr ocess 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 ex tensive 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 marketer s 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 th e 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 ben eficial 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 the175

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 increas e 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 Subti tle 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 Gro up 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 i ssued 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 in176

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 wast e 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 perce nt 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 Texas177

1 Regulation, Standards, and Pra ctices 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 assessm ent,

22 last, in EPA's economic assessment, EPA determined178

1 that CCP utilization would actually increase under

2 the RCRA C propo sal 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. Thank179

1 you.

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

3 state y our 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 S PEAKER: 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 t o 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 reg ulation possible, which is in this instance

21 Subtitle C.

22 I would also go further to say that180

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 t he 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 contamina n t s.

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 alr eady.

22 I'll leave this with you as well, though. This is181

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 t hem, 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 all182

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 S ubtitle 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 nam e 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 o f 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, th e 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 mo re pure than mine d 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 resourc e 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 scientifically184

1 supported quantities required for enhancing soil

2 properties and/or crop yields, end quote. The

3 source of this concern is somewhat curious. Wha t

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 suicid e.

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 decliv ity 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 thos e 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 ad dition, 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 that185

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 fo r 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 joi nt 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. And186

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. W ith 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 co al ash toxins can now leach into water at levels

22 that were

-- that are much higher than originally187

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 cigar ettes 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 s ubstance 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 Technolo gies. 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 yea r 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 tech nical 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 ma nagement 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 s tandards

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 to189

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 wi ll negatively impact the

21 nation's best recycling story. The industry has

22 supplied specific advertisements, bidding190

1 package s, 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 impac t 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 i s 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 r aising 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 s cenarios 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 stigma191

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 regula te coal ash. Louisiana has been a fossil192

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 t he

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, asbes tos 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 impoundm ent 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 wa ter reservoirs when it

21 rains. Whereas, underground water is scarce to

22 nonexistent in West Texas, safe surface water from194

1 l imited 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 c aused 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 groundwat er 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 unpermitte d 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 Resource195

1 Conservation and Recovery Act, RCRA. This is not

2 acceptable. Industry is so dive rse 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 dispo sal

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 wast e. 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 Mustafa196

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 year s, 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 y ears.

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 to ns 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 how197

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 c alled

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 as k 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 lan downer 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 spr inkled water. If you look at this rain that we199

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 profi t.

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 th ese 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 bas ed in Sweetwater,200

1 Texas, that is working to stop construction of the

2 proposed Tenaska Trailblazer Energy Center. Along

3 wit h 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 deadli est 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 En vironmental 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 be201

1 told.

2 Coal products and by

- products are

3 threatening to human life and therefore, by

4 definition, hazardous. It is h igh 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 con stitute 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 en vironmental 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 hav e, 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 environm ent." Please don't

21 hesitate to do what you know is right, what is

22 right for the American people. Coal ash must be202

1 regulat ed 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 a fternoon. 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 t o 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 recyc ling 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 in204

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 growi ng

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 e nvironmental 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 unn ecessary course correction is

21 without merit and poses to inflict economic

22 hardship on the industry and families across the205

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 t o 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 p riority 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 s urface impoundments that contain CCRs. These206

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 rend er 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 ar e 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 c ommissioner in Rusk County,

21 Texas. Good afternoon, and thank you for allowing

22 me to testify today.208

1 On four diffe rent 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 warra nted 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 landfi ll 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, Min nesota's I

- 35 bridge collapsed in209

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 tim es 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, why210

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 ec onomy.

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 l ot 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 the211

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'r e 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 testi fy 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 Re gulation 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 op posed 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 wa ste 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 sho uld be doing much more.213

1 MR. BEHAN: Sir, could you state your

2 name.

3 SPEAKER: My name is Jimmy Headstre am,

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 rec ycling 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 r esource with

21 many uses, including use in concrete, concrete

22 products, masonry products, soil stabilization214

1 agents, wallboar d, 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 h ave 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 end215

1 coal ash usage as we know it today. For m any

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 protec t 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 envi ronment.

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 Free stone 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 Bro wn. 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 A nderson

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 county217

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 ast onishing.

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 ground218

1 without strict regulation and they've been do ing

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: T hank 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 an219

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 gover ning

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 comm unities,

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 and220

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 genera tors

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 ou r 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 o n

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 and221

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 Big222

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 Fo r 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 Reu se 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 m uch 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 all223

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 duri ng 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 for224

1 the opportunity to provide my input regarding the

2 proposed CCR dis posal 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 practic e 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 ch aracterize 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 o n 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 ded icated 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 Und er 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 pr oduce 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 a226

1 series of technical guidance documents that cover

2 topics ranging from site selection to landfill

3 design, construction and grou ndwater 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 direct ing 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 vi ce

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 org anization

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, o ur

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 this228

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. Call ing

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

2 2 they will be very unlikely to buy coal ash from229

1 our members out of fear of liability. Even if our

2 members can obtain coal ash, they wi ll 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 w aste.

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 reg ulation 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 compani es 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 Concrete230

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 neces sary, 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 i ssue 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 percen t 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 l eaves 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 Natio nal 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 thr eatens 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 Depar tment

21 of Environmental Quality issued a warning.

22 Sixteen lakes in the state of Oklahoma contain232

1 species of fish with mercur y 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, a nd

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 over lapped 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 any233

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 obvio us 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 chan ge 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 e nvironmental

20 support manager for Entergy Services, and I'm

21 speaking today on behalf of Entergy Corporation.

22 Let me begin by first stating that234

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 mus t 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 prod uction 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 str ongly believe that any regulation that adds

21 a hazardous waste designation for this material,

22 such as the Subtitle C option in the current235

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 prov ide

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 Pr ime will

21 establish a robust and environmentally protective

22 program for coal ash storage and disposal units236

1 without cripplin g 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 exi sting 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 improvem ents,

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 a llow

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 conditionally237

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 thro ugh 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 d rank, 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 and238

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 act ions 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 and239

1 regulated in Oklahoma. I strongly r equest 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 w aste. 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 beco me 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 Conse rvation 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 Pl ease 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 Sier ra 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. Unfor tunately, when241

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 so meone 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 A rkansas, 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 be242

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 indiv idual 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 s omething 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 as243

1 chairma n 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 t rade

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 a ssure 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. Tex as 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 amo unt. 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 o f

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 bene ficial 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 proposal s, 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 us ing 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, and245

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 C C R's as a ha zardous 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, TM RA 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 regulation246

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 profi ts

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 I I 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 the247

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 n ot 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 Pu blic 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 environmental248

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 Bu t 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 p rocesses. 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 recycli ng 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 other249

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

- fir ed

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 t he electric250

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 t hat

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 advancem ent 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 sh own 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 Tex as

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 companie s 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 Railroad253

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 mo ney 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 jus tice 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 aftern oon. 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 first254

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 fr om 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 gener al, 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 i s, 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 drinking256

1 water. And that is something that they shou ld 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 ash257

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 s afe 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 sa fe 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 Sta tes 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 l ack

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, Executive258

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 su pplies 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 statesid e 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 coal259

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 corr osivity, 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 e xhibits any of260

1 those characteristics. CCPs do not have any of

2 those characteristics. The stigma associated with

3 CCP if cl assified 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 beneficial ly 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 ge neration 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 protects261

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 t he manufacture of cement

21 products. EPA has publicly stated that a

22 hazardous program would result in an increase in262

1 recycli ng. 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 bene ficial 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 c arbon 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 crippling263

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 Sh ane 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 process ing

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

2 2 conduct regular safety meetings. And safety is an264

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 s lag 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 TCL P265

1 testing requested by any of my customers has never

2 indicated any issues. Boiler slag makes up only 2

3 percent of total co al 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 th e

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 with266

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. M y 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 ill ness,

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 billion s 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 br eathe, our sources of

21 drinking water, and the physical and economic

22 health of human beings and the communities267

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 th e 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, federall y

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,

1 0 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 t hat as a matter of sound269

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 bo iler 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 fo r

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 their270

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 encou rage 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 was te 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, undercutt ing 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 voluntee rs, 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 that272

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 ac cumulation, any heavy metals that

6 escape into the environment can be c oncentrated 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 inter est 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 c oal 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 marketing274

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 includ e 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 opportun ities 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 imb alance 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 t he fly ash being sold to end

21 users for beneficial use. Designating fly ash

22 being sold or beneficially used as acceptable and275

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 Anot her 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 classificatio n of CCPs under Subtitle

21 C.

22 The overall impact of Subtitle C could276

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 to ns 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 s pace.

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 bene ficial 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: T hank 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 Bas trop Counties of Texas. I

22 appreciate the opportunity to provide my statement277

1 today.

2 Across Luminant's mines, coa l 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 f or 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 ground water 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 exce llence

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. This278

1 was also the second consecutive year Luminant

2 received OSM's highest distinction.

3 The primary goal o f 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 66,00 0 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 successf ul 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 univer sity 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 gon e 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 many280

1 local people trying to stop Tenaska from buildin g

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 t rue. 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 ow n 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 jus t that. But the TCEQ has a history of

22 simply rubber stamping whatever these huge energy281

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 a nd 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 m ake 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 processes282

1 and markets fly ash.

2 We've heard some great arguments today

3 for both Subtitle C and S ubtitle 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 Te chnologies 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 reb uilding 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 t hat 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 regu lations 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 a sh is doing to our environment right

21 now.

22 So in closing, my question to everyone284

1 here today, would we be here hav ing 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 Sepa ration

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 thes e 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 l ot 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 could285

1 come out of it. If currently it's labeled under

2 Subtitle C, then a company like o urs 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, th en 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 aftern oon. 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 generation286

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 sole ly 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 pro posed 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 Money287

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 ai r,

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, as288

1 well as generations from now. A lot o f 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 s peak 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 u p 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 l ine 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 heal th 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 the289

1 reality and show what the true cost of coal is and

2 ho pe 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 an d 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 closi ng, 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

1 8 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 ahea d.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 t o 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 of291

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 is292

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 about293

1 through my long battle with some unusual health

2 problems. After years of suffering from a

3 worsening fatigue, seasonal sinus infection s 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 allerge ns 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 u ncertain 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 recommend ed for removing

21 these impurities from my drinking water, and it's

22 essential to detoxification. But there are many294

1 people w ho 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 c oncerns 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 doll ars 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. Thank295

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 p ast 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 th e economy but also by the issuance

20 of the EPA's proposed rule seeking to regulate

21 CCRs.

22 We have intentionally delayed a296

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 c reated

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 proje ct 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 unnecessarily297

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 E ven 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 Su btitle 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 r isk 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 approa ch. Thank you.298

1 MR. BEHAN: Thank you.

2 SPEAKER: Good afternoon. My name is

3 Bob Franklin. I'm a profe ssor 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 th at takes into account everybody's

21 position, business, private enterprise,

22 environmentalists. You have to come up with299

1 midd le 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 woul d

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 Su btitle 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 li ke Enron and BP and Lehman

22 Brothers, all of Wall Street and the banking300

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

- Mon roe,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 t o 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 ha zardous

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 communitie s, county, and

22 state. Additionally, we could very well see303

1 higher costs for consumers in electric rates and

2 even natural g as 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 uti lity 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 e ntities.

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 s uch 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 us304

1 great concern when other jobs could likely be

2 threatened by the proposed rule changes.

3 The TCEQ's comprehensive CCR handlin g

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 Concre te 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 University305

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 mi llion 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. O ur 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 ind ustry of $40 million. It would

21 also hurt our ability to compete with a product

22 that actually does hurt the environment: Plastic306

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 th e

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 Pip e 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 that307

1 such beneficial uses of CCRs offer significant

2 environ mental 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 wast e 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 impound ments, 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, an d 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 Num ber 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 cl osed 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 en sure 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 mainten ance 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 characteristically310

1 hazardous, and the primary impetus for these new

2 proposed rules is the December 2008 T ennessee

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 Te xas 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, and311

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 mil lions

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 re presenting 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 i n

21 order to exploit it without regard for the health

22 and safety of current and future generations, but312

1 to ensure that creati on 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 G od 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

1 4 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 the313

1 best stewardship of the rich resources with which

2 we have been gifted. Effici encies 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 a nd 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 de fiantly

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 the314

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 concl uded 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 indus try, 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 o f the most studied and most

21 well

- understood recycling materials. I can also

22 tell you that a tremendous amount of engineering315

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 simila r 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 concre te, 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 c ripple 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 bein g 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

1 0 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 repre senting 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 ra in, came here wanting to give317

1 their comments. About 15 of them had to leave a

2 little bit earlier today.

3 I also r epresent 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 sub mit 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 c ollected. 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 wi th 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 g etting 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 they318

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 cl ean 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 wou ldn't want this crap near my

21 food.

22 That being said, I've studied this issue319

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 reall y 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 interchang eable. 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 momen t 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 dol lar 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 Ever ybody on the dollar side of the

22 argument that are coming up here trying to tell us320

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 no t 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 cons ider 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 of321

1 Oklahoma.

2 If we were to move this country beyond

3 coal, we end the problem of coal ash; but u ntil

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 any322

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 v iolations; 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 h eavy 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 be neath 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 i tself within

22 property lines? Isn't it clear that if the323

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 c an 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 p ack

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 dumpi ng 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 Oolog ah and didn't even324

1 monitor the groundwater for 30 years.

2 We've seen that coal ash pollutants can

3 build up in plan ts 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 accountabi lity 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 ci tizens 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 i nto 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 soc ial 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 op eration, 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 already326

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 Associ ation, 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 Uni ted 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 regardi ng 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 leach ate 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 America n 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 g rade 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 regulators328

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 and329

1 final cover placed. Our materials work. Use of

2 composite line r 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 t he 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 in330

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 bein g

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 havi ng

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 was te is there and undeniable and unrefutable.

22 So, therefore, we don't need any more incidents331

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 w e 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 nu mber 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 that332

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 signifi cant 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 and333

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 i s 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 an d reagents in the

21 atmosphere now have various toxic particles

22 associated with them as well.334

1 So the question of wh at'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 tox ic 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, h asn'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 yo u

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 support335

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 th e

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 the336

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 referr ed.

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 cemen titous 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 a s 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 sp eaking 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 th ese 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 g eneral diagnosis for what many people living near338

1 the plant suffer with.

2 So, needless to say, on behalf of my

3 nei ghboring 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 grandd aughters. 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 a sh

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 jus t 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 impac t,

21 aging power plants with older technology are less

22 dependable and place a huge stress on the340

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 pa y

-- 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 ca n 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 teachi ng

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 bot h

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 adequat e

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 f ish,

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 in to 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 like343

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 Lone344

1 Star Chap ter 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 establi sh 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 stat es to enforce guidelines, is not adequate.

22 It certainly will not work in Texas where the345

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 co ncerned 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 monitor ing 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 th e 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 h umans 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

1 6 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 demonstrated348

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 b ecause 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, w hich 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 ourselv es.

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 env ironment and

21 our reliance upon it. So destroying the

-- these

22 ecosystems will have a hugely negative349

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 f or

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 a nd 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 t hat 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 pro blem. And it wasn't until I350

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, your351

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 ha s

-- 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 no t

-- oh, I'm not overly

21 concerned. And

-- and I'm very supportive of

22 those people. I'm not at all afraid of those352

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 inher ent 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 bequea th 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 t his. 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 C lub, 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 d octor. My father353

1 was born in

-- in a coal community, a very small

2 town that's now a ghost town, Kaymoor. But he

--

3 then a fter 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 prou d 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 i dea 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 pers onal354

1 courage to stand up and say there's something

2 wrong here and

-- and acknowledge that there were

3 impurities and toxic w aste 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 t heir 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 the355

1 toxic release inventory. W e 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 gett ing

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 eat ing 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

-- th ese 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 happen ing

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 i ssued permits,

22 they should

-- they should be applying to all coal356

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. T hank 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 o f

11 a n 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 p articular 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 re gulations

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 that357

1 wastes that have been known to contain these

2 things wouldn't automatically fall under that

3 particular pro vision 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 stigmati zed. 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 al ternative

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

-- w ell, 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 cha nge 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 sorr y

-- 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 becaus e 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 th is 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. BEHA N: 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, the360

1 current county judge of Leon County, Texas. We

2 have three coal power

-- gene rating 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 envi ronment.

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 manufac turing jobs to361

1 approximately 100 people. These would be new jobs

2 with excellent pay scale and benefit plan. They

3 are awai ting 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 Ou r 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 caution ed 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 repeatedly362

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 precautio ns 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

-- ce rtain

-- 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 was te 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 resoluti on 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 wou ld 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 a nd 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 so uth 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 p ollution. And we know where364

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 w orld.

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 effi cient 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 o f coal365

1 right? I have my Pollution Prevention and Waste

2 Minimization textbook right here. And there's all

3 kind of talk abo ut mining and tailings and

4 metalworking, glues, furniture, paint, and

5 petroleum, RCRA and FIFRA, TO SCA and CERCLA, EFA,

6 and all that. And there ain't one darn thing in

7 this book abou t 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 bur ning. 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 inve stments 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 fantasy366

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 spe akers 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

22367

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 begi n, 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 s cheduled

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 Ch arlotte,

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 public368

1 hearing. With me on the panel are La urel 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 d o 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 t hree 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 mean s 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 y ou'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 re cord. 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 th e 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 dinn er, 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

- fire d 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 tra nsport 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 both371

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 en ergy

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 generat ion.

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 alte rnative. 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 o f 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 t he state, to ask you to choose373

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.

1 1 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 act ually

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 d irty 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 i dea. We already produce374

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 beca use 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, t he pulmonary reasons, the water

22 contamination reasons.376

1 One issue that I should touch on real

2 quickly, because I a m 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 pow er, 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 u s.

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 beg377

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, a nd 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 als o 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 bran d

- 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 q uickly 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 been378

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.

1 2 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 t hings 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 se nse 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 w ho 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'm380

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 o f 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

1 1 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 read ing 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 contained381

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 going382

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, but383

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'v e 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 our384

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 c lassify 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. DELLING ER: 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 a386

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

-- w e will reconvene at 7:45.

20 (Recess)

21 MR. DELLINGER: Number 267.

22 SPEAKER: Hi, I

-- sorry? Yes, my name387

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 s hocked 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 r eally 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 b eyond

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. DELL INGER: 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 no389

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 the y're

22 born. And, you know, basically, drinking out of390

1 the ponds that are next to these dumps. That's

--

2 it's something tha t'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 pe ople 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. W e'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 nam e 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

1 4 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 issued392

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 guidelines393

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

22394

1 CERTIFICATE OF N OTARY 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 coun sel 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 Notar y Public in and for the

20 Commonwealth of Virginia

21 Commission No. 351998

22 Expires: November 30, 2012