[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]



 
HOW SHOULD THE FEDERAL GOVERNMENT ADDRESS THE HEALTH AND ENVIRONMENTAL 
                    RISKS OF COAL COMBUSTION WASTE?

=======================================================================


                           OVERSIGHT HEARING

                               before the

                       SUBCOMMITTEE ON ENERGY AND
                           MINERAL RESOURCES

                                 of the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                         Tuesday, June 10, 2008

                               __________

                           Serial No. 110-74

                               __________

       Printed for the use of the Committee on Natural Resources



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                     COMMITTEE ON NATURAL RESOURCES

              NICK J. RAHALL, II, West Virginia, Chairman
              DON YOUNG, Alaska, Ranking Republican Member

Dale E. Kildee, Michigan             Jim Saxton, New Jersey
Eni F.H. Faleomavaega, American      Elton Gallegly, California
    Samoa                            John J. Duncan, Jr., Tennessee
Neil Abercrombie, Hawaii             Wayne T. Gilchrest, Maryland
Solomon P. Ortiz, Texas              Chris Cannon, Utah
Frank Pallone, Jr., New Jersey       Thomas G. Tancredo, Colorado
Donna M. Christensen, Virgin         Jeff Flake, Arizona
    Islands                          Stevan Pearce, New Mexico
Grace F. Napolitano, California      Henry E. Brown, Jr., South 
Rush D. Holt, New Jersey                 Carolina
Raul M. Grijalva, Arizona            Luis G. Fortuno, Puerto Rico
Madeleine Z. Bordallo, Guam          Cathy McMorris Rodgers, Washington
Jim Costa, California                Louie Gohmert, Texas
Dan Boren, Oklahoma                  Tom Cole, Oklahoma
John P. Sarbanes, Maryland           Rob Bishop, Utah
George Miller, California            Bill Shuster, Pennsylvania
Edward J. Markey, Massachusetts      Bill Sali, Idaho
Peter A. DeFazio, Oregon             Doug Lamborn, Colorado
Maurice D. Hinchey, New York         Mary Fallin, Oklahoma
Patrick J. Kennedy, Rhode Island     Adrian Smith, Nebraska
Ron Kind, Wisconsin                  Robert J. Wittman, Virginia
Lois Capps, California               Steve Scalise, Louisiana
Jay Inslee, Washington
Mark Udall, Colorado
Joe Baca, California
Hilda L. Solis, California
Stephanie Herseth Sandlin, South 
    Dakota
Heath Shuler, North Carolina

                     James H. Zoia, Chief of Staff
                       Rick Healy, Chief Counsel
            Christopher N. Fluhr, Republican Staff Director
                 Lisa Pittman, Republican Chief Counsel
                                 ------                                

              SUBCOMMITTEE ON ENERGY AND MINERAL RESOURCES

                    JIM COSTA, California, Chairman
          STEVAN PEARCE, New Mexico, Ranking Republican Member

Eni F.H. Faleomavaega, American      Louie Gohmert, Texas
    Samoa                            Bill Shuster, Pennsylvania
Solomon P. Ortiz, Texas              Bill Sali, Idaho
Rush D. Holt, New Jersey             Adrian Smith, Nebraska
Dan Boren, Oklahoma                  Steve Scalise, Louisiana
Maurice D. Hinchey, New York         Don Young, Alaska, ex officio
Patrick J. Kennedy, Rhode Island
Hilda L. Solis, California
Nick J. Rahall II, West Virginia, 
    ex officio
                                 ------                                
                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Tuesday, June 10, 2008...........................     1

Statement of Members:
    Costa, Hon. Jim, a Representative in Congress from the State 
      of California..............................................     2
        Prepared statement of....................................     3
    Faleomavaega, Hon. Eni F.H., a Delegate in Congress from 
      American Samoa.............................................     6
    Gohmert, Hon. Louie, a Representative in Congress from the 
      State of Texas.............................................     4
    Sarbanes, Hon. John, a Representative in Congress from the 
      State of Maryland..........................................     5

Statement of Witnesses:
    Burke, Dr. Thomas, Director, Risk Sciences and Public Policy 
      Institute, Johns Hopkins Bloomberg School of Public Health, 
      Oral statement on behalf of Mary A. Fox....................    40
    Evans, Lisa, Project Attorney, Earthjustice..................    45
        Prepared statement of....................................    47
    Fox, Mary A., Ph.D., MPH, Assistant Professor, Johns Hopkins 
      Bloomberg School of Public Health, Statement submitted for 
      the record.................................................    42
    Goss, David, Executive Director, American Coal Ash 
      Association................................................    16
        Prepared statement of....................................    18
    Harvey, Norman K., President, Greater Gambrills Improvement 
      Association................................................    58
        Prepared statement of....................................    60
    Norris, Charles H., Consultant, GeoHydro, Inc................    30
        Prepared statement of....................................    32
    Squillace, Mark, Professor of Law and Director, Natural 
      Resources Law Center, University of Colorado School of Law.     8
        Prepared statement of....................................    10
    Wilson, Shari T., Secretary, Maryland Department of the 
      Environment................................................    12
        Prepared statement of....................................    15

Additional materials supplied:
    Bangert, Suzanne, Director, Bureau of Waste and Materials 
      Management, Wisconsin Department of Natural Resources, 
      Letter submitted for the record............................    67


  OVERSIGHT HEARING: ``HOW SHOULD THE FEDERAL GOVERNMENT ADDRESS THE 
       HEALTH AND ENVIRONMENTAL RISKS OF COAL COMBUSTION WASTE?''

                              ----------                              


                         Tuesday, June 10, 2008

                     U.S. House of Representatives

              Subcommittee on Energy and Mineral Resources

                     Committee on Natural Resources

                            Washington, D.C.

                              ----------                              

    The Subcommittee met, pursuant to call, at 10:10 a.m. in 
Room 1334, Longworth House Office Building, Hon. James Costa 
[Chairman of the Subcommittee] presiding.
    Present: Representatives Costa, Faleomavaega, Gohmert, 
Smith, Scalise and Sarbanes.
    Mr. Costa. The oversight hearing of the Subcommittee on 
Energy and Mineral Resources will now come to order. We are 
pleased that everybody is here this morning and look forward to 
an informative oversight hearing on subject matter dealing with 
the issues of coal combustion waste, how we deal with the waste 
stream.
    We know that coal is a very important energy source for 
America presently and in the future, so before we get on with 
the subject matter let me first go through some preliminary 
housekeeping efforts that I have to deal with.
    The Subcommittee is meeting today to hear the testimony on 
how the Federal Government should address the health and 
environmental risks that deal with coal combustion waste. 
States, of course, are doing a number of different things, and 
we are looking forward to hearing what our respective states 
are doing.
    Under Rule 4[g], the Chairman and Ranking Minority Member, 
who is my friend here next to me, Congressman Louie Gohmert 
from Texas, may make opening statements. If any Members have 
any other statements, they may be included in the record under 
unanimous consent.
    Additionally, under Rule 4[h] additional material for the 
record should be submitted to Members or witnesses within 10 
days after the hearing so that way it gives us time to get a 
response back. I would appreciate the witnesses' cooperation in 
responding to any questions submitted to you in writing after 
the hearing, so we will follow through in that fashion.
    We have, I think, a couple of opening statements here. Let 
me begin with mine.

   STATEMENT OF THE HONORABLE JIM COSTA, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. Costa. The question, of course, on this oversight 
hearing is whether or not the Federal Government should address 
health and environmental risks of coal combustion waste. We 
know that there is currently a rulemaking taking place, but 
this is the first time in a decade that this Committee has 
examined the important issue of coal combustion waste 
management.
    Why now? Well, I think there is a great deal of interest. 
Chairman Rahall has for many years, coming from the State of 
West Virginia, been interested in the problems associated with 
the need to ensure our ability to use coal as an important 
energy source, but as a gentleman from West Virginia and 
familiar with the coal industry, he knows that coal waste 
management is an issue that has to be dealt with and has had to 
be dealt with really since the 1980s since we became more aware 
of the challenges that we deal with.
    Unfortunately, the problem of how to handle coal combustion 
waste is growing. While there are solutions I believe that have 
been implemented, coal, a fundamental of our present and future 
energy supply, is critical for America's energy security. Coal-
fired power plants generate half of the nation's electricity, 
but at the same time it yields approximately 125 million tons 
of coal waste a year that must be dealt with.
    Recent reports have raised serious questions about the 
management of the coal byproducts like fly ash, and we will 
hear more about that from our colleague, Congressman John 
Sarbanes.
    The Environmental Protection Agency has identified 67 cases 
in which they believe there is impact to human or ecosystem 
health from coal combustion waste. States regulate coal 
combustion waste throughout America, but obviously those 
regulatory formulas vary from state to state.
    In 2006, Chairman Rahall requested that the National 
Research Council analyze what would be the best management 
practices to in fact deal with the management of coal 
combustion residues in mines. The Council report determined 
that coal waste does cause problems, serious problems, at or 
near mines that are being used as disposal sites, yet they are 
an important avenue for that waste disposal. The report 
recommended enforceable Federal standards for mine placement as 
it relates to the coal waste.
    Today, the hearing from my perspective as Chairman of this 
Subcommittee is the following: First, to gain a better 
understanding of the dangers that coal waste can pose if we 
don't manage it properly.
    Two, to get input from the two panels to determine what 
regulation is appropriate for coal waste disposal and whether 
there is some sort of combination of management tools that 
involve landfills, quarries or mines that can be best utilized 
to deal with the coal waste byproducts.
    In addition, I would like to examine how we can promote the 
reuse of coal waste in products like concrete. I have been 
informed that the State of Wisconsin, for example, reuses 85 
percent of the coal waste, much of it in concrete. That is the 
highest percentage in the country.
    So what are the opportunities, as we listen to the experts 
this morning, to minimize the coal waste stream and to reuse it 
in ways that are good for the economy and provide good 
byproducts that have value added?
    In closing, obviously, in my opinion anyway, coal will 
continue to be a critical part of America's energy supply, but 
we should also at the same time use the best management 
practices so as to ensure the pollution from coal waste should 
not be a problem extended into the future that the next 
generation of Americans will have to deal with.
    I look forward to learning how we can ensure that 
commonsense safeguards and commonsense cost-effective ways in 
which we can protect people, our communities and our water 
supplies and, at the same time, continue to ensure that coal 
will be a very important part of America's long-term energy 
supply.
    At this time, I would like to recognize my colleague, if 
you want me to defer, the Ranking Member.
    [The prepared statement of Mr. Costa follows:]

            Statement of The Honorable Jim Costa, Chairman, 
              Subcommittee on Energy and Mineral Resources

    Today's hearing is the first time in at least a decade that this 
Committee has focused on the important issue of coal combustion waste 
management. I expect, however, that this will be just the beginning of 
our examination of coal waste. Although our Committee's chairman, Mr. 
Rahall, has sought solutions to the problem of coal waste management 
since the 1980s, many of us on this Subcommittee are just beginning to 
learn about the environmental and health risks of coal combustion 
waste, and options for its safe management. We intend to hold 
additional hearings on coal combustion byproducts in which we can gain 
input from other perspectives, including federal agencies like the 
Environmental Protection Agency and the Office of Surface Mining, on 
how best to address the waste challenge safely and sustainably.
    Why hold this hearing now? First, because the problem of how to 
handle coal combustion waste is growing. Coal is a fundamental part of 
our present and future energy supply. Coal-fired power plants generate 
half the nation's electricity. But, they yield approximately 125 
million tons of coal waste a year that we must reuse or dispose.
    Secondly, the time is ripe for this hearing because recent reports 
raise serious questions about the management of coal byproducts, like 
fly ash. The Environmental Protection Agency has identified 67 cases in 
which human or ecosystem health have been compromised by coal 
combustion waste. And, the Agency's draft risk assessment from 2007 
revealed risks to human health and the environment from the disposal of 
coal waste in landfills and surface impoundments.
    Another important report was published in 2006. At Chairman 
Rahall's request, the National Research Council analyzed how to safely 
manage coal combustion residues in mines. The Council's report 
determined that coal waste may cause problems at or near some mine 
disposal sites, and found gaps and inadequacies in state regulatory 
programs for coal waste disposal. The report recommended enforceable 
federal standards for mine placement of coal waste.
    In short, today's hearing is an opportunity to gain a better 
understanding of the dangers coal waste can pose if mismanaged, and get 
input on what regulation is needed for coal waste disposal--whether in 
landfills, mines, quarries, or other kinds of sites.
    I also think it is important that we examine how we can promote 
reuse of coal waste in products like concrete and roads. For example, 
Wisconsin reuses roughly 85% of its coal waste--the highest rate in the 
country. Caltrans, in my home state of California, is considered a 
leader among state transportation agencies because it requires the use 
of fly ash in concrete paving projects. A typical Caltrans project uses 
at least 25% fly ash as a replacement for Portland cement. What are the 
opportunities to minimize the coal waste stream nationwide, as 
Wisconsin and California are striving to do?
    My personal belief is that coal will continue to be a critical part 
of our energy supply--but pollution from coal waste should not be part 
of America's future. I look forward to learning how we can ensure that 
common sense safeguards are in place for people, communities, and water 
supplies.
                                 ______
                                 
    Mr. Gohmert. I will go ahead.
    Mr. Costa. OK. We will have the Ranking Member, the 
gentleman from Texas, with his opening statement, and then I 
will defer to the gentleman from Maryland. Mr. Gohmert?

 STATEMENT OF THE HONORABLE LOUIE GOHMERT, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF TEXAS

    Mr. Gohmert. Thank you, Chairman Costa. Thank you for 
holding this hearing today. It is always good when the 
Committee gets an opportunity to focus on energy production and 
its byproducts.
    Especially today since approximately 50 percent of the 
nation's electricity is generated from coal-fired power plants, 
about half of the byproducts of the combustion of coal are 
recycled and used for beneficial uses such as wallboard cement, 
road construction and--well, it helps benefit soil. There you 
go. The remainder of the material is placed in landfills, 
surface impoundments or used in mine reclamations.
    The use and disposal of coal combustion byproducts has been 
studied for decades by EPA beginning in 1980 with the passage 
of the legal amendment to the Resource Conservation and 
Recovery Act. EPA made a formal regulatory determination in 
1993 that coal combustion byproducts were not hazardous. After 
additional studies they reiterated this finding in 1999 during 
the Clinton Administration and again in 2000, again during the 
Clinton Administration.
    In their 2000 Federal Register notice, they announced their 
intention to develop national standards under the Solid Waste 
subtitle of the Resource and Recovery Act for disposal of the 
coal combustion byproducts in landfills, surface impoundments 
and mines.
    EPA's developments have been delayed by repeated requests 
from numerous organizations and activist groups for additional 
studies, including a study conducted by the National Research 
Council titled Managing Coal Combustion Residues in Mines.
    As a result of that study published in 2006, the Office of 
Surface Mining, in concert with EPA, has been working on 
establishing Federal standards for the disposal of coal 
combustion byproducts in mines as part of their Surface Mining 
Control and Reclamation Act. Barring another lawsuit or further 
delay, these regulations will be final early next year.
    For some reason neither the EPA or OSM were invited to 
testify today at this hearing entitled ``How Should the Federal 
Government Address the Health and Environmental Risks of Coal 
Combustion Waste.'' It seems sometimes helpful to me to ask 
those that are doing the studies how they are doing the studies 
and what results they have, what help that we might could 
better be to them since they are the ones going through the 
study rather than merely hearing their critics.
    It seems to me both agencies could have had important 
information and substantive data to share with the Committee in 
their oversight of this issue. In particular, the extent and 
magnitude of surface and groundwater contamination from the 
disposal of these coal combustion byproducts would be helpful.
    Data recently made available by the EPA showed that out of 
600 landfills and surface impoundments, only 24 had 
contaminated either surface or groundwater. I would like to ask 
the EPA or OSM what studies were done to be sure what percent 
of the 24 came from the landfills, and how many of those may 
have come from other causes. No contamination has been 
demonstrated, it is notable, as a result of disposal in mines.
    A comprehensive oversight hearing today should have invited 
the EPA and the OSM to testify, whether we agree with them or 
not, to determine the results of their studies, their 
methodology and all that has been done over the last 28 years 
by the Federal Government, and where they are in the process of 
taking Federal action to address the concerns that will be 
raised by the witnesses today.
    Regardless of the makeup of these panels, we are still 
focusing on an important issue, the disposal of coal combustion 
waste. Since we may have more coal than any other country in 
the world and since some in this country have a concern about 
the price of energy and the effect on hardworking Americans of 
its ongoing increases in price, this is certainly an important 
issue.
    It is also notable that economies around the world that are 
struggling do very little, and in some cases nothing, to help 
the environment. Since the goal that many of us have is to make 
sure that we have a clean environment that we can pass on to 
our children and since struggling economies like China and 
India are more concerned about getting jobs for people so they 
don't revolt, then it is important to make sure hardworking 
Americans don't lose their jobs.
    Or, as some of us have heard from people in my district, 
union people especially that are having difficult times paying 
for the gasoline to get to and from jobs, then it is important 
to give them the relief so, as one person told me two weeks 
ago, he doesn't lose his job because he can't afford the gas to 
get there.
    According to the recent EIA Energy Outlook report, energy 
production from coal will grow just under 50 percent between 
now and 2030 unless we continue to do nothing but attack it. 
Identifying the proper methods of disposal with coal combustion 
waste is a very important subject, and I look forward to 
hearing from our witnesses and the expertise they will provide.
    Thank you, Mr. Chairman.
    Mr. Costa. Thank you, Mr. Gohmert from Texas.
    We will now have for an opening statement the gentleman 
from Maryland, Representative John Sarbanes.

 STATEMENT OF THE HONORABLE JOHN SARBANES, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF MARYLAND

    Mr. Sarbanes. Thank you, Chairman Costa. I am going to keep 
my opening remarks pretty brief because I am eager to hear from 
the panel that we have assembled here, but I want to thank you 
for holding the hearing today. I want to thank you for allowing 
me to participate on the Subcommittee's hearing.
    The whole issue of fly ash and coal combustion waste 
generally is one that I have become much more sensitive to in 
recent months because of a situation in my district in 
Gambrills, Maryland, where there is fly ash dumping in a sand 
and gravel mine which, as far as we can tell, has caused 
several wells in the area to become tainted with toxic 
material.
    If you look at the materials--and I was reading the 
testimony of the various witnesses last night--there are so 
many different potential harmful effects that can come from 
this coal combustion waste and the leaching that can occur, 
particularly as it gets into groundwater and then finds its way 
to the drinking water wells that people rely on.
    So this is a very important hearing. Obviously we want to 
understand what some of those health effects are. We want to 
understand what the states are doing to try to respond to this 
emerging awareness of the threat and risk, and we want to 
understand what the appropriate Federal role may be in 
providing oversight and regulation with respect to how this 
coal combustion waste is disposed of.
    You have discussed some of the beneficial reuse that can 
occur. That is something else to explore here, but I am 
particularly focused on the health effects and what we can do 
to combat them and prevent them.
    We are lucky to hear today from Shari Wilson, who I know, 
who is the Secretary of the Maryland Department of Environment, 
who has responded to the particular situation that I mentioned 
at the outset aggressively, has an impressive background in 
defending the environment, and I am very interested to hear her 
perspective on how the state regulation and oversight of this 
issue can work as a compliment to what we may pursue at the 
Federal level.
    We are also going to hear on the next panel from Norm 
Harvey, who is a resident of one of the communities that was 
affected, and I think getting his personal perspective on the 
impact it has had in his community is also critical to giving 
us a full awareness of the issue.
    So I am looking forward to the testimony from the witnesses 
and I thank you again for bringing us together for this 
hearing. Thank you.
    Mr. Costa. I thank the gentleman from Maryland.
    The gentleman from Nebraska, Mr. Smith? Do you have an 
opening comment?
    [No response.]
    Mr. Costa. OK. Pass. Do you have a couple of comments, the 
gentleman from American Samoa?
    Mr. Faleomavaega. One or two comments, Mr. Chairman, if 
that is all right.
    Mr. Costa. One or two. The Chairman is in a tolerant mood 
this morning. One or two comments. You don't want to go to 
three or four, though.

STATEMENT OF THE HONORABLE ENI F.H. FALEOMAVAEGA, A DELEGATE IN 
                  CONGRESS FROM AMERICAN SAMOA

    Mr. Faleomavaega. I really wanted to attend this hearing. I 
serve on the Foreign Affairs Committee, and correct me if I am 
wrong, Mr. Chairman, probably no other country in the world is 
more sensitive, especially as it relates to the usage of coal. 
We happen to have one of the biggest supplies in the world in 
our own country.
    I notice also an interest. China relies tremendously on 
coal, and when you talk about environmental problems that we 
are faced with in the usage of this prime resource that is so 
common in many other countries in the world, the only question 
I raise is that while we are doing this domestically and 
internally making sure that we are environmentally protected 
and all of this, other countries don't even give a hoot about 
coal combustion waste because that is the only source of energy 
that they use without any concern for the environment and how 
this relates to our own sense of well-being.
    In that area I am curious and wanting to see where do we go 
from here? We put standards on ourselves, which I think is 
commendable, but my question is will the other countries do the 
same? I think there is a big disparity here. We put more onus 
on our own people, our own companies and all of this, but 
nothing whatsoever to deal with other countries that use coal 
in such a way that we are not here for discussion, not even to 
discuss what coal combustion waste is all about.
    That is just my point, Mr. Chairman, and thank you for the 
two minutes that you have allowed me to say this.
    Mr. Costa. We always love your participation, my good 
friend, the gentleman from American Samoa, and you are quite 
right to point that out, although I think that in China and 
maybe other parts of the world they are starting to turn the 
corner on this.
    When they are hosting the Olympics, as they are this 
summer, and trying to figure out how they reduce the amount of 
emissions so that you can have enough air quality days so the 
athletes can compete, they know they have a problem.
    Mr. Faleomavaega. If the gentleman would yield? China is 
spending over $40 billion just to prepare for the Olympics 
coming up in August, which is very interesting.
    Mr. Costa. Right.
    Mr. Faleomavaega. And how this will affect our athletes 
that will be competing there? Absolutely no question. The air 
in China is terrible.
    Mr. Costa. Certainly it has gotten on their radar screen 
and they are aware, as are many of the countries whose athletes 
are going there, about the impact of the air quality, so 
consequently that is part of the tradeoff, although I will be 
wanting to point out to Members of the Subcommittee this 
morning that is not the subject of our hearing, but it is the 
interest of a lot of testimony, and I do appreciate that.
    Let us get on with our first panel if that is all right 
with everyone. We would like to recognize the witnesses. We 
have Professor Mark----
    Mr. Squillace. Squillace.
    Mr. Costa.--Squillace. Is that right?
    Mr. Squillace. Yes.
    Mr. Costa. Squillace. Italiano?
    Mr. Squillace. Italiano. Si.
    Mr. Costa. Italiano. Molto buono. Mr. Squillace is the 
Director of the Natural Resources Law Center at the University 
of Colorado School of Law.
    We have Ms. Shari Wilson, the Secretary of the Environment 
for the State of Maryland, and we have Mr. Dave Goss, the 
Executive Director of the American Coal Ash Association.
    For those of you who have not testified before a committee 
in Congress, you have those lights right in front of you there 
in front of Ms. Wilson. Those timing lights are to be a guide, 
but we do follow them. They give you five minutes.
    The green light, of course, means you are on, the yellow 
light means you have a minute left, and the red light means 
that the Chair would really appreciate very much if you would 
draw your comments to a close. If in fact you have more 
information you would like to provide us, we do ingest that in 
the written statements, so keep it to five minutes.
    The Chair would now like to recognize with those rules laid 
out there the professor from the University of Colorado School 
of Law.

   STATEMENT OF PROFESSOR MARK SQUILLACE, DIRECTOR, NATURAL 
   RESOURCES LAW CENTER, UNIVERSITY OF COLORADO SCHOOL OF LAW

    Mr. Squillace. Thank you, Mr. Chairman. My name is Mark 
Squillace. I am the Director of the Natural Resources Law 
Center and a Professor of Law at the University of Colorado Law 
School, and, most relevant for our purposes today, I was a 
member of the National Research Council committee that issued a 
report recently on the disposal of coal combustion residues at 
coal mines.
    It is my pleasure to appear before the Committee today to 
address the question that was posed by the Committee, which is 
how should the Federal Government address the health and 
environmental risks of coal combustion waste, and for reasons 
that I will explain in a moment I am going to use the term coal 
combustion residues rather than coal combustion waste when 
referring to these materials.
    Let me take a moment, if I can, to just explain my 
perspective on the nature of the problem we are addressing 
here. As the Chairman has already noted, we produce about 125 
million tons of coal combustion residues annually in this 
country. This is a lot of material. It is about the equivalent 
of what we produce in the municipal solid waste annually in 
this country.
    To try to visualize how much material we are talking about, 
if you could imagine a line of railroad cars extending from New 
York to Los Angeles, it would go back three and a half times 
filled with coal combustion residues. It is a lot of material, 
and dealing with it poses a significant challenge. There is 
nobody that can question that.
    The vast majority of these coal combustion residues that we 
are talking about are residues from air pollution control 
equipment that is placed at coal-fired power plants. About 60 
percent is in the form of fly ash, which is the chief residue 
from electrostatic precipitators and bag houses at these 
facilities. A little more than 20 percent comes from scrubbers 
or flue gas desulfurization processes which are used to reduce 
SO2 emissions.
    About 16 percent is in the form of bottom ash, which is, of 
course, a residue that comes and falls out of the bottom of the 
boiler, and, finally, a small portion is in the form of boiler 
slag, which comes from an older type of boiler that is 
generally being phased out.
    As the Committee's question implies, the disposal of these 
CCRs can impose significant environmental risks and health 
risks as well. I would like to make two recommendations to the 
Committee on this issue.
    First and foremost, I think Federal policy should treat the 
disposal of coal combustion residues, whether at a coal mine, a 
landfill or an impoundment, as the option of last resort. 
Second, where disposal is allowed, Federal standards should be 
established to ensure the disposal of CCRs does not cause 
environmental damage.
    Before expanding on these recommendations, let me briefly 
explain why I am using the term coal combustion residues. The 
reason really is that these are not wastes. As we are going to 
hear I am sure from the representative from the Coal Ash 
Association, there are many beneficial uses for these products, 
and for this reason I think the term residue better reflects 
the nature of the materials rather than waste. Waste obviously 
connotes something that you dispose of or throw away. I would 
rather we thought about these materials as something that we 
can use beneficially.
    Now let me turn to my two recommendations. The first 
concerns the beneficial reuse of these materials. The NRC 
committee report suggested that the use should be strongly 
encouraged. Currently less than half of our CCRs are in fact 
being beneficially used outside of the disposal process.
    I would go further. I would argue that they should only be 
authorized for disposal in exceptional circumstances, and my 
reasons are quite simple. The disposal of coal combustion 
residues causes external costs that are not captured in the 
marketplace.
    These include, for example, as we have already discussed, 
the potential environmental risks and damage associated with 
disposal of CCRs and, more importantly, it includes the 
environmental and societal costs that are associated with 
mining virgin materials that these coal combustion residues 
could replace in road construction and other kinds of purposes. 
These costs would include, by the way, the carbon footprint 
associated with these kinds of mining activities.
    While disposal might still be necessary in some limited 
circumstances, especially in the short term, I would urge the 
Committee to consider some possible incentives to encourage the 
beneficial secondary use of CCRs. These might include, for 
example, a ban on disposal unless the CCR producer demonstrates 
a substantial and good faith effort to make reuse of the CCRs, 
perhaps even a modest tax on disposal that could be used to 
support beneficial secondary uses and, finally and most 
importantly perhaps, setting mandatory minimum content 
requirements for Federal highway construction that can be 
waived only in exigent kinds of circumstances.
    In addition, imposing strict regulatory standards on 
disposal will I think provide a further incentive. As the 
Chairman has already noted, Wisconsin currently reuses about 85 
percent of their coal combustion residues. I don't think that 
is an accident. Wisconsin has one of the strictest regulatory 
programs for coal combustion residues in the country, and I 
think that directly reflects the fact that a lot of these 
residues are being reused.
    I am out of time I see. I just want to mention that I would 
as well support the setting of strict standards for site 
characterization and CCR characterization at the mine, 
performance standards, bonding, monitoring and other kinds of 
requirements if in fact they are ultimately disposed of, and I 
will look forward to working with the Committee in the future 
on trying to develop appropriate legislative standards if the 
Committee decides to go forward on that line.
    Thank you very much, Mr. Chairman.
    [The prepared statement of Mr. Squillace follows:]

     Statement of Mark Squillace, Professor of Law, and Director, 
   Natural Resources Law Center, University of Colorado School of Law

    Thank you for the opportunity to appear before the Subcommittee on 
Energy and Mineral Resources of the House Committee on Natural 
Resources. The subcommittee has called this hearing to address the 
question: ``How Should the Federal Government Address the Health and 
Environmental Risks of Coal Combustion Waste?'' Implicit in this 
question is the concern that coal combustion wastes may contain toxic 
constituents that pose long-term damage to water supplies and the 
resources that depend on them.
    I have spent most of my professional career working on mining 
issues, with a particular emphasis on coal mining. I was also a member 
of the National Research Council (NRC) Committee that was called upon 
recently to study the disposal of coal combustion residues (CCRs) in 
coal mines as part of the mine reclamation process. That effort was 
especially relevant to the question posed by the Committee.
    I have two recommendations that respond to the question posed by 
the subcommittee. First and foremost, federal policy should treat the 
disposal of coal combustion residues--whether in coal mines, 
impoundments or landfills--as the option of last resort. Whenever 
possible, CCRs should be used for secondary beneficial purposes, and 
such use should be promoted through incentives for secondary use as 
well as disincentives for disposal. The NRC Committee recommended that 
secondary use of CCRs be ``strongly encouraged.'' I would go further 
and argue that disposal of CCRs in coal mines, landfills, and 
impoundments should not be authorized unless and until the producer 
demonstrates a substantial and good faith effort to make the CCRs 
available for secondary use.
    In establishing a presumption in favor of secondary use, it will 
become important to be clear that disposal of CCRs in a coal mine, in 
an impoundment, or in a landfill does not qualify. While it may be true 
in some cases that CCRs can neutralize toxic materials at a disposal 
site, this fact alone should not be used to justify a beneficial 
secondary use claim. Beneficial, secondary uses must be new uses of the 
CCRs that allow the user to avoid the use of some other substitute 
material. Second, where disposal is allowed, federal standards should 
be established to ensure that the disposal of CCRs does not cause 
environmental damage.
    Before expanding on these recommendations, let me raise an issue 
about nomenclature. At the outset, federal policy should avoid 
accepting the characterization of coal combustion residues as ``waste'' 
materials. Calling them wastes suggests that they are something for 
disposal. In fact, most of these wastes have high values for other 
purposes. I have used the term ``residues'' which was the term settled 
on by the National Research Council Committee on which I served. The 
Office of Surface Mining has used the term ``by-products,'' and the 
EPA, simply ``products.'' Whatever term is used, it is important that 
federal policy recognizes that, for the most part, they are not wastes 
and that disposal of these materials in mines, impoundments and 
landfills should be discouraged.
Federal Policy Should Discourage Disposal
    CCRs come from various sources at coal-fired power plants. The 
majority--about 57 percent--comes from fly ash, which is the chief 
residue from burning finely crushed coal, and which is collected in 
baghouses and from electrostatic precipitators. Flue gas 
desulfurization (FGD) material is a residue from the wet and dry 
scrubbers typically used for reducing SO2 emissions. FGD materials 
comprise about 24 percent of the CCRs produced at these plants. Bottom 
ash is a coarser residue that falls out of the boiler and makes up 
about 16 percent of CCRs. Finally, boiler slag is a molten form of 
bottom ash that comes from certain types of furnaces. Boiler slag 
particles have a smooth, granular surface that are uniform in size. 
About 3 percent of CCRs are in the form of boiler slag.
    CCRs are widely recognized as suitable for a range of beneficial 
uses. For example, fly ash has cementitious properties that can be used 
in the production of cement and other construction activities, and is 
also suitable for use in the production of cement, especially in 
lightweight concrete products. FGD materials are essentially gypsum 
(calcium sulfates and sulfites), which is the principle material in the 
manufacture of wallboard. FGD materials are also used in the production 
of cement.
    Much is being done to promote the secondary use of these and other 
CCRs. The Coal Combustion Products Partnership (C2P2) program, which is 
a cooperative effort that includes the U.S. Environmental Protection 
Agency (EPA), the American Coal Ash Association, (ACAA), the Utility 
Solid Waste Activities Group (USWAG), the U.S. Department of Energy 
(DOE), the Federal Highway Administration (FHWA), and the U.S. 
Department of Agriculture (USDA), does a good job of promoting the 
Secondary use of coal combustion residues in beneficial applications. 
See: http://www.epa.gov/epaoswer/osw/conserve/c2p2/index.htm
    The most recent statistics show increasing use of CCRs for 
beneficial purposes, but much more can still be done. For example, the 
ACAA estimates that almost 45 percent of the 72.4 million tons of fly 
ash produced in 2006 (about 32,423,569 tons) was used in 12 of 15 
applications that they tracked. This was a 5 percent increase over the 
previous year. FGD gypsum production in 2006 was about 12.1 million 
tons, and of that about 79 percent (or 9,561,489 tons) was used, 
primarily on the production of wallboard and similar products. This is 
up 2.5 percent over that of 2005. Bottom ash production was about 18.6 
million tons of which 45 percent (or about 8,378,494 tons) was used. 
This was up 4.5 percent from that of 2005. About 2 million tons of 
boiler slag was produced in 2006 of which 83 percent (or 1,690,999 
tons) was used. This was down from the estimated usage of 96.6 percent 
in 2005. Boiler slag is used primarily in blasting grit and as roofing 
granules. Because boiler slag comes from older style cyclone furnaces, 
boiler slag production is expected to decline as these furnaces are 
retired.
    While the economic incentives for secondary use of CCRs are 
generally strong, there remains a great deal of CCR disposal that would 
not likely occur if the true cost of disposal were factored into such 
decisions. Among the external costs that are unaccounted for in CCR 
disposal are the societal and economic costs of mining virgin 
materials, including the carbon footprint from such activities, and the 
environmental costs and associated risks that result from CCR disposal. 
While a complete accounting of these costs should be made, these 
external costs are sufficiently obvious to warrant the immediate 
imposition of incentives for secondary use and disincentives for 
disposal of CCRs. This might, for example, include a modest tax on CCR 
disposal, the proceeds from which could be used to promote secondary 
use of CCRs. A $0.10/ton tax on the nearly 53 million tons of CCRs that 
were disposed of in 2006 would yield revenues of $5.3 million, and this 
money could be used to help establish markets for CCRs or to otherwise 
incent CCR producers to make secondary use of these materials.
    In addition, and as suggested previously, federal and state 
policies and laws should encourage beneficial secondary use of CCRs by 
demanding that CCR producers demonstrate a substantial and good faith 
effort to make the CCRs available for secondary use. This should 
include an analysis of the suitability of the particular CCRs that are 
being produced for secondary uses, the relevant markets that might 
exist for those CCRs, and the efforts that have been made to market 
those CCRs to interested parties. Federal and state policy could 
promote these markets by establishing minimum CCR content (or CCR 
preference standards) for road building materials in Federal Aid 
Highway projects.
    Even as secondary use is encouraged, some CCR disposal will 
certainly continue, especially in the short term. Because CCRs may 
contain toxic constituents, the NRC Committee concluded that 
enforceable federal standards should be established when CCRs are 
disposed of in coal mines. Logically, the need for such standards 
applies to CCR disposal in impoundments and landfills as well. The 
establishment and implementation of these standards is important not 
only to protect the environment and public health, but also because 
strict standards will themselves promote the beneficial secondary use 
of CCRs. Notably, in Wisconsin, which has one of the best programs in 
the country for managing CCR disposal, 85 percent of CCRs were 
beneficially used in 2004 as compared with only 35 percent nationally. 
Coal Combustion Waste Management at Landfill sand Surface Impoundments, 
1194-2004, DOE/PI-0004 (April, 2006)
    Among the issues to be resolved regarding federal CCR disposal 
standards are the questions of which federal agencies should be 
primarily responsible for managing CCRs, and what standards should be 
imposed. Once again, the NRC Committee lays out a useful roadmap for 
answering these questions. The EPA is the federal agency most closely 
associated with managing waste disposal so it makes sense that the EPA 
will be significantly involved in this process. Nonetheless, the NRC 
Committee was focused on CCR disposal at coal mines during the 
reclamation process, and coal mining reclamation is under the 
jurisdiction of the federal Office of Surface Mining. Given these 
overlapping roles, the NRC Committee wisely recognized that 
coordination between the Office of Surface Mining and the EPA was 
needed. The Office of Surface Mining will not be involved in CCR 
disposal in impoundments and landfills, but it makes good sense that 
mine disposal standards would be consistent with standards for 
impoundments and landfills. Thus, it is critically important that the 
EPA be closely involved with the Office of Surface Mining in developing 
standards for CCR disposal in mines, and that EPA use those standards 
as a template for federal standards for impoundments and landfills, if 
Congress grants EPA the authority to promulgate such standards.
    As for regulatory standards, the NRC Committee lays out a sensible 
outline for such standards. Drawing on the Committee's recommendation, 
Congress should pass appropriate legislation to enforce that the 
following standards should be implemented at all landfills, 
impoundments, and mines that are subject to CCR disposal:
    1.  CCR and Site Characterization. Both the disposal site and the 
CCR materials must be assessed and characterized to determine their 
potential for promoting leaching of toxic materials on their own and 
once they are combined at the site.
    2.  Site-Specific Management Plans and Performance Standards. A 
specific plan must be developed for the disposal at the particular 
site, and site-specific standards must be established that assure the 
protection of the environment and public health. Generally, sites 
should be designed to minimize the flow of water through CCRs so as to 
minimize the potential for leaching toxic materials.
    3.  Monitoring and Bonding. Given the uncertainties and risks 
associated with CCR disposal, the placement of a suitable number of 
monitoring wells should be required with special attention to wells 
that are down-gradient from the CCR disposal area. An adequate bond or 
other financial assurance should also be required to assure that the 
regulatory agency can cover the costs of remedial action, should such 
action become necessary.
    4.  Public Participation. The public has a strong interest in 
assuring the disposal of CCRs does not adversely affect the environment 
or public health. Thus, any CCR disposal proposal should be explicitly 
made subject to an environmental assessment process with the 
opportunity for robust engagement of the public on issues of concern.
    While much of what I have recommended to the committee can be 
accomplished without legislation, legislative direction could be very 
helpful in clarifying federal policy and especially in promoting the 
beneficial secondary use of CCRs. For this reason, I look forward to an 
ongoing dialogue with the Committee and its staff as it considers 
whether legislative action may be necessary or appropriate.
    Thank you for opportunity to present these views to the Committee. 
I welcome your comments and questions.
                                 ______
                                 
    Mr. Costa. Thank you, and we will pursue some of your 
comments at the question and answer period.
    Our next witness is Ms. Shari Wilson, Secretary of the 
Environment for the State of Maryland, our neighbor next door.

             STATEMENT OF SHARI WILSON, SECRETARY, 
             MARYLAND DEPARTMENT OF THE ENVIRONMENT

    Ms. Wilson. Good morning, Chairman Costa and Honorable 
Members of the Committee. Thank you for the opportunity to 
share in particular Maryland's experience with coal combustion 
waste and, more importantly, for your interest in this very 
important issue.
    I also want to thank Congressman Sarbanes for his immediate 
support and keen interest in this issue as it relates to public 
health for the citizens of Maryland. We have greatly 
appreciated his support.
    This morning I would like to talk about four items: The 
generation of coal combustion wastes in Maryland, how it is 
regulated, what our experience has been, and our 
recommendations for moving forward.
    In Maryland we, too, rely on coal for over half of our 
electricity generated. We have five companies in Maryland who 
generate coal combustion byproducts at nine facilities. Those 
nine facilities produce approximately two million tons of coal 
ash--that is fly and bottom ash--each year.
    We do anticipate that the volume of the material generated 
will increase significantly over the coming year. In Maryland, 
the Maryland Healthy Air Act requires reduction of sulfur 
dioxide by 80 percent by 2010 and 85 percent by 2013. Flue gas 
desulfurization equipment or scrubbers, as the professor 
mentioned, is the technology that will be used to achieve those 
reductions.
    While removing 200,000 tons of SO2 emissions, at the same 
time use of those scrubbers will also increase the volume of 
scrubber slug by 2.5 million tons, so we will be more than 
doubling the tonnage of this waste material that is generated 
in Maryland over the coming five years.
    As you mentioned, coal combustion byproducts are frequently 
reused. Currently in Maryland we are at about the one million 
ton mark, so we are just around 50 percent. Fly ash, as you all 
know, can be reused for many beneficial purposes, including 
concrete manufacturing and building material, and wherever 
possible reuse must be strongly encouraged.
    There are, however, questions about the conditions under 
which reuse is and should be taken. For example, when used for 
structural fill should liners be used? Should there be defined 
distances between the use of the material and potable water 
resources? Should it be used in sensitive environmental areas, 
wetlands and other areas of special state concern?
    So while reuse is the goal and we would like to reach the 
100 percent mark in the preferred alternative, currently in 
Maryland half of our waste is not reused, and we have many 
questions about further guidelines for the proper reuse.
    The remainder of the material generated in Maryland is 
disposed of or used in mine reclamation. We have 29 locations 
where these materials have been disposed or are being used in 
one form of mine reclamation or another. Of those sites, 21--21 
of the 29--are surface mines, 20 are coal-related and one is a 
sand and gravel mine. Eight are structural or fill sites. So we 
are a small state, but we have a variety of conditions under 
which these materials are used and then disposed of.
    As far as our regulatory authority is concerned, in 
Maryland regulatory controls exist through mining and/or water 
discharge permitting authority, so we are using our mining 
authority and our water discharge permit authority to control 
mine reclamation and disposal sites. We do not have regulations 
that are specific to the management and control of coal 
combustion waste products. Many states also use their solid 
waste authority. Maryland does not, but we have proposed to do 
so.
    Turning quickly to our experience, at two sites within the 
past year we have experienced groundwater and surface water 
contamination issues as the Congressman from Maryland 
mentioned. One site impacted residential groundwater wells. We 
took immediate action to correct, require remediation, 
corrective action, connection of those homes to public water 
supply and impose the third largest fine in Maryland's 
environmental civil penalty history, again indicating the 
severity of the situation. We have one other enforcement action 
underway.
    Also at around the same time we began to assess 
comprehensively what we are doing to regulate these materials 
in Maryland. We in eight months have put in place a proposal to 
more tightly regulate using our solid waste authority as many 
other states do to more tightly regulate how this material is 
disposed of.
    Turning to our recommendations, we have three. There is an 
opportunity for further research at the Federal level with 
regard to health impacts and also with regard to guidance on 
beneficial reuse and the circumstances under which that is 
appropriate.
    Also with regard to Federal regulation, while we do not see 
any reason why this material should be regulated as a hazardous 
waste, we do see this as an issue where there is a need for 
some Federal threshold or baseline of regulation to ensure 
public health is protected.
    I have to mention that this is an area where the conditions 
from state to state vary tremendously. Even within the small 
geographical area within Maryland we have tremendous variety in 
our groundwater conditions, our soil conditions, and the 
guidelines for proper and safe disposal will vary tremendously 
from location to location.
    This is the same across the country, of course, but 
magnified many times over. So while we think there is a place 
for a Federal baseline or threshold of action, a threshold 
which states must meet, it is very important to understand in 
this arena that the conditions significantly vary in terms of 
geological conditions, groundwater conditions and temperature 
and climate and a lot of other issues that affect proper 
disposal.
    So to the extent there were to be any Federal action, we 
believe that it would be appropriate to set a minimum threshold 
but allow states to exceed those thresholds, but also to tailor 
the regulatory scheme to their particular conditions.
    I also want to note that the ECOS Waste Subcommittee has 
recently sent a letter to EPA expressing the opinion that the 
materials should not be regulated as a hazardous waste and that 
no Federal regulation appears to be warranted, and I understand 
that ECOS as a body may take up this issue in the fall.
    Maryland's position is slightly different than that. We 
agree that there is no call for regulation of the material as a 
hazardous waste, but we do think that some Federal threshold 
would assist in ensuring that the states have programs in place 
to protect public health and the environment based on their 
individual conditions.
    Mr. Costa. You have exceeded your time by two minutes and 
30 seconds. I have been patient. I want to be fair to all the 
witnesses.
    Ms. Wilson. I understand, Mr. Chairman, and I am 
concluding. I greatly appreciate your patience.
    [The prepared statement of Ms. Wilson follows:]

               Statement of Shari T. Wilson, Secretary, 
                 Maryland Department of the Environment

    Chairman Costa, and honorable members of the Committee, thank you 
for the opportunity to share Maryland's experience with coal combustion 
waste with you and, more importantly, for your interest in this very 
important issue.
    We also greatly appreciate Congressman Sarbanes' interest and 
attention to issues surrounding the disposal of this by-product of 
producing energy from coal.
    In 2006, the most recent year for which complete information is 
available from Maryland's Public Service Commission, coal generated 
60.1% of the electricity generated in the State. In Maryland, there are 
five companies who generate coal combustion by-products at 9 
facilities. Approximately 2 million tons of coal ash (fly and bottom 
ash) is generated annually from Maryland plants. Of that 2 million 
tons, approximately 1.6 million tons of coal ash is from the plants 
owned and operated by two companies, Constellation and Mirant.
    In Maryland, the Maryland Healthy Air Act requires flue gas 
desulfurization equipment (known as ``scrubbers'') to be put in place 
by 2010 to reduce sulphur dioxide (SO2) emissions by 80%. A second 
phase of requirements in 2013 will increase the emission reductions to 
85%. That equipment, while reducing SO2 emissions by over 200,000 tons 
will also increase the volume of scrubber sludge produced by 2.5 
million tons. By 2013, therefore, facilities in Maryland will generate 
4.5 million tons of CCWs.
    As you are aware, coal combustion by-products are frequently 
reused. Currently, approximately 1 million tons, or one half of the 
coal ash produced annually, is beneficially used in Maryland. Fly ash 
can be reused for concrete manufacturing and in building material. It 
can also be used as structural fill in roadway embankments and 
development projects. (It can also be used in agricultural 
applications. While these are just a few of the reuse applications, 
there are many outstanding questions with regard to the safety of 
reuse.) For example, when used for structural fill, should liners be 
used; should there be defined distances between use of CCWs and potable 
water sources; should it be prohibited in shoreline areas such as the 
Chesapeake Bay Critical Area, source water protection areas, wetlands, 
or other areas of special concern; if used in agriculture, should it be 
applied to crops that are for human consumption. These are issues being 
examined as the State begins to develop a second phase of regulations 
to more effectively control reuse.
    While reuse is the goal and preferred alternative, currently in 
Maryland, approximately half of the coal combustion by-products 
generated in Maryland are disposed of or used in mine reclamation. 
Maryland has 29 locations where these materials are disposed of or used 
in mine reclamation.
    Currently, in Maryland, regulatory controls exit through mining 
and/or water discharge permitting authority, but the State currently 
does not have regulations that are specific to the management and 
control of CCWs.
    At two of the disposal sites, within the past year, the Department 
of Environment has taken legal action to require cleanup of groundwater 
or surface water contamination. This contamination results from the 
placement of 4 million tons at one site and 5.5 million cu/yrds at a 
second site. The groundwater contamination at one site affected 
residential drinking water wells. As a result, the Department required 
groundwater remediation, provision of a temporary water supply and 
eventually a connection for residences to a public water supply. The 
severity of the situation resulted in the third largest civil 
environmental penalty in state history, a fine of $1 million.
    Prior to that action, the Department began to assess how it 
regulated the disposal of this material. We were concerned that the 
regulatory controls Maryland was using needed to be improved given the 
range of disposal sites and the varying geology and subsurface 
conditions in Maryland.
    At that time in 2007, we were aware that the Environmental 
Protection Agency (EPA) had been working on regulations since 2000 to 
institute additional controls on the management of CCWs but had not 
finalized a proposal. The lack of any federal standard combined with 
the immediate need to better control disposal prompted Maryland to 
develop new regulations to strengthen controls on the management and 
disposal of CCWs. In a very short timeframe, within 8 months, Maryland 
proposed regulations for public review and comment at the end of 2007 
and announced our intent to develop a second set of regulations dealing 
with the beneficial reuse of CCWs this year. At least two local 
governments in Maryland have also begun considering the extent to which 
they should institute, through their land use planning and zoning 
authority, additional controls.
    Developing and implementing regulations such as these also present 
a new expense for the State. To address that issue, during the 
legislative session of the Maryland General Assembly, the Department 
proposed legislation to establish a fee to be paid by a generator of 
coal CCWs based on a per ton rate of CCWs generated annually excluding 
CCW that was beneficially reused. While the legislation was not 
enacted, there was general recognition of the need for the regulations 
and the need to pay for implementation. The Maryland Department of 
Environment continues to aggressively work on this important issue 
using the State resources available to us.
    While, we do not believe it is necessary or appropriate to regulate 
this material as a hazardous waste, clearly, there is a need for more 
stringent management and control of CCWs in order to protect human 
health and the environment in Maryland.
    We believe there is also a need for action at the federal level. 
First, a basic premise of the RCRA statute is to promote reuse. There 
are many opportunities for the federal government, through research, to 
more effectively assess reuse opportunities and, as a result, to 
significantly reduce the volume of material that must be disposed. 
Alternatives to disposal must be maximized to the greatest extent 
possible.
    Second, we believe that the federal government should establish a 
minimum set of standards for land disposal such as requiring landfill 
type liners at non-mining reclamation sites as Maryland proposes to do. 
We are aware that other States, not just Maryland, are dealing with 
ground and surface water contamination issues from disposal. This is 
also an area where a threshold of consistency from state to state would 
be beneficial.
    It is, however, critical to note, that with this issue a one size 
fits all approach will not work. It will not work due to the many 
variables that control safe disposal such as geology and groundwater 
characteristics. Each state must be able to tailor standards based on 
the type of ash generated, the characteristics of that ash, the land 
disposal methods used, the geology and groundwater conditions and many 
other characteristics that affect whether disposal is protective of 
public health.
    Thank you for taking the initiative to inquire into this important 
issue and for the opportunity to share Maryland's perspective.
                                 ______
                                 
    Mr. Costa. All right. Our next witness is Mr. David Goss, 
the Executive Director of the American Coal Ash Association.
    Mr. Goss, I would suggest that you not follow the two 
previous witnesses as an example on the time that I am going to 
give you.
    Mr. Goss. I will try, Mr. Chairman. Thank you.
    Mr. Costa. Thank you.

STATEMENT OF DAVID GOSS, EXECUTIVE DIRECTOR, AMERICAN COAL ASH 
                          ASSOCIATION

    Mr. Goss. Mr. Chairman and Members of the Committee and 
distinguished panelists, I appreciate the opportunity to be 
here this morning.
    Our organization promotes the management and beneficial use 
of coal combustion products, a term that we prefer to use, 
which include fly ash, bottom ash, boiler slag and air emission 
control residues such as synthetic gypsum.
    It is our opinion that the EPA regulatory determination 
made in 1993 and reaffirmed in 2000 is still correct that CCPs 
do not warrant regulation as hazardous waste. Furthermore, 
current state regulatory initiatives are more than sufficient 
to protect the health and safety of the public and the nation's 
environment. This view is reflected, as Ms. Wilson mentioned, 
in the ECOS letter on June 5, and it was mirrored in an 
Oklahoma Department of Environmental Quality letter to Congress 
on June 6.
    CCPs have varied applications, ranging from replacing 
Portland cement and concrete, which reduces CO2 
emissions, to being utilized in road construction, agricultural 
use, wallboard manufacturing, soil amendments and many other 
applications. In most cases, the use of these materials is 
technically equivalent or superior to other products.
    For example, fly ash, when used as a replacement for 
Portland cement, is not just a filler or a substitute, it 
actually improves the concrete, makes it more durable and 
longer lasting than using Portland cement alone.
    This type of sustainable model for the use of CCPs, which 
is done in an environmental, health and safety conscious 
manner, should be a desire of all of us in this room, I 
believe. The reason why beneficial use should be supported is 
simple: Using CCP avoids using other materials and reduces the 
need for additional disposal facilities.
    If this nation is going to develop a sustainable energy 
policy and a society where the use and reuse of many of our 
industrial byproducts and waste streams is promoted, similar to 
what they do in Europe today, then we must begin now to 
conserve our nation's resources for her future generations.
    The Federal Government has been involved in CCP utilization 
as part of the regulatory and legislative initiative for many, 
many years. For nearly three decades, extensive research has 
been conducted and technical guidance developed to ensure the 
environment is protected while recycling millions of tons of 
these mineral resources each year.
    State specific regulation is best able to address local 
conditions. Because of the wide variations of climates, 
topography and soils across the United States, it is necessary 
that each state evaluate its own need when using industrial 
byproducts in construction or reclamation activities. What may 
work in Colorado may not work in Maryland or Pennsylvania.
    State regulations are crafted to accommodate local 
environmental conditions. These mature regulatory programs and 
policies developed and implemented by the states provide for 
the proper management of CCPs. Federal regulations would not be 
able to cover each of the conceivable scenarios.
    As you know, the Office of Surface Mining, in consultation 
with the EPA, is developing regulations to implement 
recommendations made by the National Research Council to 
address mine placement of CCPs. These broad based rules will 
enable states to update or develop rules needed to address 
their own needs within the framework of the national program.
    If an adverse condition is identified, we have seen that 
states prepare to respond. Despite the occasional example such 
as in Anne Arundel County, we believe the relatively few 
exceptions do not require new Federal regulations. Rather, the 
state regulatory process is working well. Maryland intervened. 
The operation ceased. Corrective action was initiated, and 
penalties were imposed. Maryland didn't need Federal 
regulations to address this issue.
    A goal of this Committee, I believe, is to help balance our 
nation's demand for energy with our rapidly shrinking natural 
resources. CCPs can and should be a part of that effort to 
conserve natural resources because if we don't use the CCPs 
themselves then earth, clays, aggregates, soils or more 
greenhouse gases will otherwise be extracted, processed, used 
or emitted.
    We agree with the National Research Council's findings that 
an integrative process of characterization, management and 
engineering design can best reduce potential environmental 
risks whether it is in mining, road construction or other land 
uses.
    Additional legislative action isn't warranted or needed and 
could actually inhibit reuse and recycling. We must better 
manage our limited natural resources by using and recycling 
these existing industrial mineral resources, including CCPs.
    Thank you, sir.
    [The prepared statement of Mr. Goss follows:]

             Statement of David Goss, Executive Director, 
                     American Coal Ash Association

    Good morning, Mr. Chairman. My name is David Goss, Executive 
Director of the American Coal Ash Association. I sincerely appreciate 
the opportunity to address you, the members of the Committee and other 
distinguished experts appearing before you on this important topic. 
ACAA is an industry association of producers, marketers, end-users, 
researchers and others who support the beneficial use of what our 
industry refers to as coal combustion products, commonly known as CCPs. 
This includes coal ash and residues from air emission control systems 
such as synthetic gypsum products. These materials are the residuals 
from the burning of coal to generate electricity. By the very nature of 
the energy generation process utilizing coal, these byproducts cannot 
be eliminated entirely and must be managed like many other industrial 
byproduct streams. We consider CCPs to be mineral resources that if not 
used, become resources that are wasted.
    In a perfect world, energy generation would not have any byproducts 
because the process would efficiently use all of the raw materials 
needed to generate electricity. Yet, the coal fueled generation process 
is not perfect. Even other energy options have consequential impacts, 
for example wind, which yields noise pollution and bird impingement. 
The coal-based energy generation industry generates byproducts 
including fly ash, bottom ash, slag and gypsum. The difference is that 
many of our products can replace or improve other commonly used 
commodities including portland cement and constituents which are used 
to produce concrete and other construction materials. The safe re-use 
of CCPs has a significant positive impact on this nation's mineral 
resources, its environment and economy. It is essential to promote and 
support activities that contribute to a more sustainable nation. By 
sustainable nation, I mean efficient, socially responsible and 
environmentally friendly usage of CCPs. I think the majority of us 
would agree that byproduct re-use which is environmental, health and 
safety conscience is much better than putting wastes in a disposal 
facility. Recognizing this common interest to promote safe and 
environmentally sound byproducts use, I am here to address how the 
beneficial use of CCPs contributes measurably to reduce environmental 
impact and is properly being regulated by the federal and state 
authorities.
Background Information
    Annually, more than 125 million tons of CCPs are produced and more 
than 54 million tons (or 43%) are used beneficially. These beneficial 
uses include: raw feedstock for portland cement production...as a 
replacement for portland cement in concrete and concrete products...as 
mineral filler in asphalt...as aggregates in road construction...for 
soil modification and stabilization...for wallboard panel products...in 
agriculture...in coal mine reclamation and many other commonly accepted 
uses.
    The premise of this hearing is what should be done by the federal 
government to regulate CCPs. I believe that the federal government has 
for years worked closely with states to address the impact of CCPs in 
all media: water, land and air. I am taking the liberty of highlighting 
only a few of more recent federal efforts. Our industry believes this 
partnership between federal and state authorities has allowed state 
governments to remain agile to address unique issues related to local 
topography, climatology and land conditions (including abandoned mine 
lands). We do not see a need for this regulatory balance to be 
legislatively adjusted at this time.
    On May 22, 2000, the United States Environmental Protection Agency 
(``EPA'') confirmed in the Federal Register that regulation of CCPs 
under Subtitle C of the Resource Conservation and Recovery Act, 
(``RCRA'') was not warranted. Furthermore, the EPA stated ``we do not 
want to place any unnecessary barriers on the beneficial uses of these 
wastes, because they conserve natural resources, reduce disposal costs 
and reduce the total amount of waste destined for disposal.'' The EPA 
also stated, ``We have not identified any other beneficial uses that 
are likely to present significant risks to human health or the 
environment and no documented cases of damage to human health or the 
environment have been identified.'' (See 65 Fed. Reg. 32214 to 32228, 
May 22, 2000).
    In 2004, the United States Department of Energy (``DOE'') and EPA 
issued a detailed evaluation of the placement of CCPs in landfills and 
surface impoundments, for the period 1994 through 2004. This study was 
done to provide additional information not available during the 
regulatory determination process that supported the position taken by 
the EPA on May 22, 2000 cited above. The report concluded that the 
information reviewed showed improved management of CCPs was seen in 
both landfills and surface impoundments. Additionally, 100% of the 
sites reviewed were covered by one or more state issued permits.
    During 2004 and 2005, the National Research Council of the National 
Academies conducted an extensive evaluation of the use of CCPs in 
mining activities, the results of which were published in 2006. The 
committee concluded that the use of CCPs as part of mine reclamation is 
appropriate provided that an integrated process of characterization, 
management and engineering design is in place to reduce potential 
risks. Because of this conclusion and the other recommendations by the 
committee, the Office of Surface Mining (``OSM''), in consultation with 
the EPA, is taking the lead role in developing proposed rulemaking. The 
OSM rules would pertain to permit applications and performance 
standards for coal mine reclamation under Title V of the Surface Mining 
Control and Reclamation Act of 1977 (``SMCRA'' or the ``Act'') or in 
the reclamation of abandoned coal mine sites funded under Title IV of 
the Act. This rulemaking is anticipated to be issued in the summer of 
2008.
Beneficial Use
    Mr. Chairman, it is our opinion that the current state and federal 
regulatory process is more than adequate to protect both the 
environment and to address any potential health risks to the general 
public. Recently there was a situation in Anne Arundel County, Maryland 
where the placement of CCPs (at the Gambrill's site) was found to be 
impacting local groundwater. As a result of that incident, the State of 
Maryland immediately intervened,, operations were halted and worked 
with the company involved and the local community to correct the 
situation. Furthermore, the Maryland Department of the Environment 
(``MDE'') has instituted a full review of their solid waste and 
beneficial use regulations as they pertain to CCPs. The lessons learned 
at this one site are being shared with surrounding states and with 
other states through the Association of State and Territorial Solid 
Waste Management Officials (ASTSWMO) and EPA regional offices to 
understand the specific situation at this location. This unusual 
situation, in our opinion, does not warrant broad federal regulations.
    The Commonwealth of Virginia has just formed a Technical Review 
Committee to assess the adequacy of the State's current CCP regulations 
along with a broader review of Virginia solid waste regulations. The 
first meeting of this broad based advisory group is scheduled for later 
this week. This regulatory review process will identify any situations 
or scenarios where changes to Virginia regulations might be needed.
    It is our opinion that most states want to continue their role in 
the oversight of management, recycling and beneficial use of CCPs and 
other industrial byproduct streams. Routinely conducted for many years, 
industrial recycling of materials continues to play an important role.
    Gambrill's is, we think, an isolated example related to one CCP 
situation. As discussed above, other surrounding states are looking at 
these circumstances to ensure any lessons learned are instituted to 
protect their citizens and environment. In 2006, more than 54 million 
tons of CCPs were used in fifteen application categories. These include 
use in concrete and concrete products; the production of portland 
cement; flowable fill materials; structural fills and embankments; road 
base and soil modifications; mining, agricultural and other 
construction activities. These applications have enabled contractors, 
end-users and project owners to reduce the consumption of raw 
materials, helped reduce greenhouse gas emissions and have eliminated 
the need for new landfill or impoundment space.
    Our Association believes that using CCPs in these numerous proven 
applications is not ``disposal.'' CCP re-use alternatives have been 
demonstrated by analysis, research, testing and successful construction 
and remediation activities. For example, it is a measurable benefit 
that using fly ash in concrete as a partial replacement for portland 
cement can decrease CO2 emissions and improves performance, 
strength and durability of the concrete. CCPs do not just replace the 
portland cement, they improve the product. Increasing the longevity of 
structures by using fly ash, for example, reduces the need for 
replacement or re-construction of this nation's transportation and 
building infrastructures. This exemplifies how beneficial use today can 
better provide for future generations.
    CCPs are also used extensively in coal mine reclamation to help 
achieve approximate original contour requirements, to eliminate 
dangerous high walls, as a soil amendment, to neutralize harmful acid 
mine drainage and for many other beneficial uses. The EPA has evaluated 
CCPs extensively in the last three decades and continues to affirm they 
are not hazardous to the public or to the environment when properly 
managed and used. In the May 22, 2000 regulatory determination, the EPA 
stated, ``There have been no proven damage cases related to post-SMCRA 
placement of CCPs in coal mines.''
    For use in mining, the OSM, ASTM, DOE and a number of universities 
have provided technical guidance and have supported research and 
demonstration projects that have proven that when properly managed and 
placed, the beneficial use of CCPs can significantly improve conditions 
at active and abandoned mining sites. The DOE funded Combustion By-
Products Recycling Consortium (``CBRC'') has issued a number of project 
reports concerning the use of CCPs in mining and other applications 
that demonstrate their safe and effective use.
    The State of Pennsylvania has documented many cases where the use 
of CCPs has significantly improved abandoned mine sites within the 
Commonwealth. Pennsylvania's positive experience with CCPs is fully 
described in its 2004 publication ``Coal Ash Beneficial use in Mine 
Reclamation and Mine Drainage Remediation in Pennsylvania.
    There are a significant number of industry-developed comprehensive 
technical standards for CCP use that address engineering properties, 
testing procedures and design considerations (including geological, 
hydrological and construction techniques). Included in this design 
process is specific guidance about minimizing environmental impacts 
such as fugitive dust, groundwater impact and storm water runoff. These 
documents and specifications detail protections to the environment and 
the public, as well as specifying quality, technical performance and 
other criteria. For example, the American Society for Testing and 
Materials International (``ASTM'') has developed several standard and 
guideline documents that provide technical information on the use of 
CCPs in structural fills, embankments and mining activities. 
Additionally, there are many other similar technical documents issued 
by ASTM, American Concrete Institute (``ACI'') and the American 
Association of State Highway and Transportation Officials (``AASHTO'') 
that address the use of CCPs in road construction, architectural uses, 
as aggregates, in soil applications and in concrete products.
    Furthermore, the Federal Highway Administration (``FHWA''), the 
DOE, the EPA, the Electric Power Research Institute (``EPRI''), the 
Recycled Materials Resource Center (``RMRC''), the Turner-Fairbank 
Technical Center and AASHTO have supported research, conducted studies, 
provided training and issued technical guidance covering the use of 
these same CCPs in highway construction, road work and land 
applications. For example, years of monitoring of highway and road 
construction projects across the nation have seen no health or safety 
issues resulting from the use of CCPs. In a study by the RMRC at the 
University of New Hampshire, it was concluded that:
        Studies and research conducted or supported by EPRI, government 
        agencies, and universities indicate that the beneficial uses of 
        coal combustion products in highway construction have not been 
        shown to present significant risks to human health or the 
        environment.
    The practice of using sound management techniques and evaluating 
the specific project conditions is implemented widely. EPRI, ASTM, ACI, 
FHWA and state agencies have guidance documents that provide technical 
and environmental considerations to engineers, contractors and highway 
authorities on the use of CCPs in highway and road construction and 
land reclamation. Federal and state agencies routinely approve CCPs for 
use in road construction because there are well established technical 
practices that address potential CCP impact on the environment. Some 
states further define the use of CCPs under their own codes and 
regulations, further substantiating the beneficial value that CCPs can 
offer. Other states may not approve all CCPs for use for road 
construction but welcome the use of fly ash, for example, as a partial 
replacement for portland cement. These geographic distinctions are 
worthy of note because they mirror the natural and economic climates 
and differences that face different states or regions.
    In 2003, the EPA, DOE, FHWA and the CCP industry formed the Coal 
Combustion Products Partnership (``C2P2''). This is a nation-wide 
effort under the Resource Conservation Challenge to help promote the 
beneficial use of coal combustion products and the environmental 
benefits that result from their use. The partnership has established a 
goal of 50% utilization of CCPs by the year 2011, a goal that was 
mutually agreed upon by the EPA, industry, DOE, the Utility Solid Waste 
Activities Group (``USWAG'') and FHWA. The partnership is fully 
described at the EPA website http://www.epa.gov/epaoswer/osw/conserve/
c2p2/index.htm. This website provides technical and environmental 
information about using CCPs in ways that conserve natural resources, 
reduce the need for landfills or disposal facilities and that can 
reduce greenhouse gas emissions. Case studies and documents describing 
CCP applications are available to interested parties. C2P2 partners 
include producers, marketers, state agencies, end-users and researchers 
whose experiences with CCPs further demonstrate the value that these 
materials can offer.
Conclusions
    We need to use fewer natural resources and use more industrial 
byproducts to improve our society and sustainable economy. As President 
Carter stated, ``We simply must balance our demand for energy with our 
rapidly shrinking resources.'' Naturally, the use of any byproduct must 
be done in a socially responsible manner that addresses environmental, 
health and safety needs. We believe that the current federal and state 
regulatory schemes are well suited to address CCPs use and management.
    Regulations affecting air, water and solid waste all have an impact 
upon industrial practices and resulting byproducts. Air quality 
requirements are primarily driven or controlled at a federal level. 
Water and solid waste regulations have been developed at the national 
and state level since many studies have recognized that risks are not 
the same all across the country and impacts are better governed at a 
local level to address specific geological, hydrological or climate 
conditions.
    As described above, key federal agencies including the EPA, the 
DOE, the FHWA, the OSM, the U.S. Department of Agriculture and along 
with many states have funded, supported and promoted many beneficial 
uses for CCPs. Extensively documented research and field projects 
reinforce our position and theirs that using CCPs is both technically 
and environmentally sound and provides greater benefit to the 
environment than disposal.
    ACAA and the CCP industry believe that current federal and state 
regulations are protective of the environment and public health. Most 
states have developed regulatory guidelines for management and 
beneficial use for CCPs, which have implemented practical and 
technically sound methods for managing these materials. When a negative 
example is found, states intervene and share their experiences through 
ASTSWMO, EPA regional offices and technology transfer activities that 
support each state's unique needs. Additional legislative or broad 
brush regulatory schemes aren't warranted to address an isolated 
instance.
    Years of actual field experience have shown that the benefits of 
using CCPs in lieu of other materials have not had a negative impact on 
the environment, public health or safety. Engineering and environmental 
professionals within private sector, federal and state agencies 
acknowledge and support the many values of using CCPs.
    As your website so clearly states, this nation needs to maintain a 
healthy balance between providing for energy needs and conserving our 
nation's precious natural resources. One way which has proven effective 
is to safely use industrial byproducts such as CCPs. Existing programs 
and regulations may need to be occasionally adjusted at a federal or 
state level but wholesale prohibitions on certain re-use applications 
or new federal regulatory schemes are unwarranted. Existing technical 
and environmental controls are already available to state and federal 
agencies to ensure that CCPs will continue to be properly used. The use 
of CCPs (in conjunction with good engineering judgment and the need to 
conserve natural resources) can provide many benefits to the public 
without environmental risk while promoting sustainable construction and 
infrastructures.
    Thank you again for this opportunity to address this committee.
                                 ______
                                 
    Mr. Costa. Thank you very much, Mr. Goss, for staying 
within the time limits. You had 13 seconds left.
    The time now is to the area of questioning. Let me begin 
with my five minutes. We prescribe to the same rules we apply 
to you in a sense of fairness.
    Mr. Goss, you spoke about in your testimony the nature of 
requiring the value and the recycling. In California, Caltrans, 
our state transportation agency, for example, requires 25 
percent I believe of the coal ash to be used in road 
construction, and state highways.
    What is the value? I mean, I am trying to get a sense of 
this. In Wisconsin they recycle, as we stated earlier, 85 
percent, and you talked about other value products. I am trying 
to get a sense of what the value is so why we have such 
unevenness in terms of the applicability of reusing the coal 
ash.
    Mr. Goss. Well, sir, your example in California is a very 
good one. California is actually basing some of its 
requirements on the need to reduce greenhouse gas emissions.
    If you use fly ash in concrete, that means you don't have 
to produce Portland cement, which means that Portland cement 
then would not be releasing CO2 to the atmosphere. 
That is one of the consequences from kind of an environmental 
viewpoint.
    But the use of these materials in concrete, for example, 
actually strengthen and improve their performance, making them 
longer lasting structures. That means less cost over the life 
cycle of the highway or the building or whatever.
    Mr. Costa. Yes, but if I do a bid with Caltrans and I get 
the bid--I have measured out all my cost inputs to build the 
road for 10 miles or whatever I have gotten the contract for--
what is the cost to purchase coal ash to mix it in with this 
product, I mean, compared to other alternatives?
    Mr. Goss. Well, as compared to Portland cement, sir, the 
price of fly ash is typically less by either a half to two-
thirds.
    It may be higher in California because you are a bit of a 
unique state with a higher demand level, but there is an 
economic advantage. The cost of pouring the concrete is 
actually reduced by using cold fly ash in the concrete.
    Mr. Costa. All right. Madam Secretary, the comments you 
made, and I also want to go to Mr. Squillace on this point.
    As a former state legislator, I am always very sensitive to 
the issue of Federalism and what the appropriate balance ought 
to be in the regulatory environment, and I really think one of 
the unique and I view it as a value added sense of America is 
that with state/ Federal relations one size doesn't fit all, 
and what works for Maryland may not work in California or other 
states.
    It sounded like in your testimony you were discussing how 
Maryland has successfully begun to address this issue of coal 
ash, but in terms of the Federal response you wouldn't be 
suggesting that the Environmental Protection Agency in fact 
have a set of prescriptive rules that would rule states' 
flexibility, would you?
    Ms. Wilson. No, we would not, and this is the delicate 
balance. You very aptly described it.
    In this case the state is putting in place regulations, and 
we will meet what we think is a protective standard. At the 
same time, given the variety of approaches that different 
states use, and we are not the only state obviously to have 
faced contamination situations. We do think it is appropriate 
to have some sort of Federal floor, if you will, that all 
states should be required at a minimum to meet.
    In our case, had this been in place it is possible--we 
can't say for sure--that we wouldn't be facing some of the 
situations that we are facing, but I was trying to articulate 
the wide, wide variety, as you rightly point out, of geologic 
and other physical characteristics and variety of disposal 
situations that really govern where this material should be 
placed.
    Mr. Costa. Before my time expires, Mr. Squillace, you were 
part of the National Research Council I guess, right, on the 
report?
    Briefly, did the committee find efficiencies? Well, 
obviously the committee did find efficiencies on how State 
regulates this. What were the recommendations out of the 
committee's report? You have 40 seconds to answer.
    Mr. Squillace. There were a number of recommendations 
relating both to very generally the need for more standards on 
disposal. Excuse me. My mic was off.
    And regarding those standards for disposal, I would say 
that the recommendations were somewhat general, but also I 
think specific in insisting that there needed to be some 
Federal floor, as Secretary Wilson has already pointed out.
    Things like characterizing the CCR material and the site 
where you are disposing of it, that is not unique to any place. 
You need to know what toxic constituents you have in these 
residues before you decide where you are going to dispose of 
them. The same with the site. You need to know what is at the 
site and how it might interact with those residues before you 
can determine whether it is appropriate.
    Now, the conditions will be different. We saw a remarkable 
site in Indiana that is essentially a saturated site, so 
Secretary Wilson is right that these are site specific kinds of 
issues, but I think it is also fair to say that there are some 
minimum Federal standards that can and should be imposed to 
assure that we have a uniform set of standards perhaps 
implemented by the states.
    Mr. Costa. OK. Yes. Well, my time has expired and therefore 
your time has expired as well, but I do want to explore that 
more, and maybe if we get another round of questions we will go 
on that in terms of how you would apply that.
    The gentleman from Texas is recognized for five minutes.
    Mr. Gohmert. Thanks, Mr. Chairman.
    Just following up on that line of questioning, Secretary 
Wilson, we received a letter from Steven Patterson, the 
Assistant Secretary. I take it you are familiar with him?
    Ms. Wilson. Yes, sir.
    Mr. Gohmert. OK. In his letter he had said the principal 
authority for regulating waste from the combustion of coal 
should be at the state level, and I am just wanting to be sure. 
Are you all saying a similar thing? How do you reconcile what 
he said as compared to what you are suggesting?
    Ms. Wilson. Mr. Patterson is the Assistant Secretary at the 
Maryland Department of the Environment, and he did send that 
letter to EPA that you referred to.
    The letter was sent earlier this spring in reference to 
Federal regulation and the notion that there would be 
regulation of this material as a hazardous waste, which I think 
we are agreeing that it isn't warranted.
    But we have, as a result of the situation that we have 
experienced in Maryland with the two sites, looked very 
carefully at really what the right answer is, and we do think, 
as Mr. Patterson suggests in that letter, that the states do 
have the ability to craft the right programs.
    What we are saying today is that we do also think it would 
be beneficial to have some sort of Federal floor, if you will, 
to ensure consistency in the level of protection that is 
provided.
    Mr. Gohmert. Well, what if the Federal minimum level is of 
such a level that it puts Maryland in a real bind to comply 
because its standards are just a lot tougher than the minimum 
level there?
    I am wondering about that because if that is the case then 
it clearly indicates the Federal Government thinks Maryland 
can't do it alone. They are just not capable of doing it alone. 
We have to do it for them. That is the danger of minimum levels 
by the Federal Government.
    Ms. Wilson. I appreciate the question, and there is a fine 
line to draw because of the huge variation that we keep talking 
about with this issue, but the states have a long history of 
working successfully with EPA on certain issues to craft 
standards that provide a minimum and then allow the flexibility 
to tailor the regulatory approach to your unique state's 
conditions.
    Particularly in this area where you have regulation under 
solid waste laws, under mining laws and under water discharge 
laws, there are a variety of approaches that can be used and 
you can envision a scenario where there is some sort of 
baseline and then the state tailors it to its own particular 
situation.
    Mr. Gohmert. A good example with regard to air pollution. 
The Federal standard just bumped down to 75 parts per billion.
    Where I live in east Texas, we have tremendous amounts or 
numbers of pine trees, plants that put out all kinds of pollens 
and at some certain points of the year it is around 70 parts 
per billion just from pollen and natural sources, so there is 
some discussion that in order to comply with the EPA standards 
on air quality we may need to cut down all our trees and 
concrete over all our grass in order to really comply 
effectively.
    The state may have been better at forming that in 
conjunction with what actually is the situation on the ground, 
and that is always the danger with the Federal Government.
    Mr. Goss, do you think the state and Federal regulatory 
programs the way they are right now bottom line are working OK?
    Mr. Goss. Yes, sir, I do. I believe there is plenty of 
recourse through the Federal programs, whether with RCRA or 
through Superfund, to correct issues if a state doesn't 
intervene, but the states have demonstrated they are more than 
willing to intervene and address the issues locally as they 
need to.
    Mr. Gohmert. And just in my last seconds here, the 
observation I made earlier I am really concerned about, and 
that is as we have seen energy prices get so high I have seen 
people whose number one concern previously was making sure we 
had a clean environment, and now they say the heck with that, 
make sure I don't lose my job or I get a job.
    And so it seems important that we do balance the economic 
needs with the environmental needs, that we don't push too hard 
on one at the expense of the other. They do need to work 
together.
    I really appreciate your time and your input today. 
Obviously five minutes each is not much time, but you provided 
written testimony. Any other thoughts you may have on things we 
can improve, we welcome those in writing.
    Thank you, Mr. Chairman.
    Mr. Costa. Thank you, my friend.
    I would now recognize the gentleman from Maryland, Mr. John 
Sarbanes.
    Mr. Sarbanes. Thank you, Mr. Chairman. I want to thank the 
panel.
    Mr. Goss, I was curious. I was reading in your testimony, 
the written testimony, and you alluded to it today, that you 
viewed the Gambrills situation as sort of an isolated example 
of what could happen in terms of the health effects.
    I wanted you to expound on that a little bit, I mean, 
because there seems to be evidence of this happening other 
places. Why do you refer to it as isolated?
    Mr. Goss. I guess, sir, the reason I would suggest that is 
because Gambrills demonstrates a process of constructing new 
disposal facilities that was probably used historically but 
would not be done today. The issues associated with groundwater 
impact the placement of the materials, the characteristics of 
the materials, the local community through engineering 
processes and design processes that would not occur again.
    I don't believe that utilities would take the risk of 
constructing and disposing of CCPs in a manner that might 
result in a situation such as was found at the Gambrills site. 
I think there is kind of a self-policing policy that electric 
utilities use--there is a certain higher awareness and sense of 
that concern over the last few years as the reports to 
Congress, the reports from DOE and EPA talking about disposal 
facilities.
    There is a high percentage of all the new facilities that 
have been built since say 2000, much more restrictive, state 
permits in almost every single case covering the design, so I 
think the Gambrills is kind of a leftover from a previous era, 
if you don't mind me saying.
    Mr. Sarbanes. But, Mr. Squillace and maybe Ms. Wilson, 
there must be a lot of leftovers out there, right?
    Mr. Squillace. Leftover?
    Mr. Sarbanes. Well, Mr. Goss refers to Gambrills as sort of 
leftover from a previous era when you didn't have in place 
perhaps a kind of preventive regulation that you would want to 
have, but it is not isolated in the sense that there is 
presumably, and I think evidence of in some of the studies that 
have been done, other leftover situations, quite a few perhaps.
    Mr. Squillace. I would say not just leftovers, but----
    Mr. Sarbanes. Yes.
    Mr. Squillace.--even the potential for new problems. There 
was a really interesting site we visited in New Mexico that was 
designed on the assumption that this was essentially an arid, 
dry desert climate that was not going to come into contact with 
water, but there was no requirement for sort of identifying in 
land use plans and in the property records that in fact CCRs 
had been disposed of in massive quantities at this coal site 
that was undergoing reclamation.
    Subsequently up gradient from the site the Navaho Nation 
had started an irrigation project and was irrigating the land, 
and presumably the water running through that area then could 
raise issues that had never even been considered at the time 
that the disposal was there. There were indeed some problems 
that were identified down on that site earlier on.
    I think that this is certainly an historic problem on some 
level, but it is a continuing problem, an ongoing problem. I 
think it is one that we can expect to see problems with in the 
future.
    Mr. Sarbanes. Ms. Wilson, you are arguing for, and Mr. 
Squillace is as well, a kind of Federal baseline from which the 
states could then add their own particular customized approach, 
depending on the particular situation and geophysical 
attributes to the state and so forth.
    I think you alluded to it when you were testifying, but 
would it have been helpful if that baseline had been in place 
when you had turned to the particular situation that you had in 
Gambrills, and if the baseline had been in place before perhaps 
could that situation have been avoided?
    Ms. Wilson. Yes. I can't say whether the situation would 
have been avoided, but I think it would have been helpful to 
have a baseline in place.
    As opposed to these being leftover sites, it is more a 
matter of we didn't have the regulatory program in place that 
we ideally would have had so when we talk about a Federal 
baseline it is making sure all states, including ours, are at a 
regulatory level that is protective.
    Mr. Sarbanes. Yes, Mr. Squillace? And then if you could 
also just comment?
    I mean, it seems to me, because I am going to run out of 
time and the Chairman is being very tight with the gavel, but 
it seems to me that one argument is there are plenty of sources 
of authority you could go to to regulate things, but they are 
disparate and they have to be sort of knitted together under 
the circumstances.
    What a baseline can do is it can raise the awareness level 
and represents a place where people can turn and get all of the 
guidance and authority that they need to respond.
    Mr. Squillace. I think that is an excellent point, but 
there is another important point I would like to make, which is 
the lack of Federal standards, which I think promotes the 
classic race to the bottom here.
    If Maryland decides to adopt more stringent standards for 
CCR disposal, West Virginia or Pennsylvania or nearby, and the 
materials could go there. As a practical matter it is heavy. It 
won't always happen that they will be moved, but if there are 
options to move the material somewhere else where it is going 
to be less expensive that will happen.
    Mr. Sarbanes. Right.
    Mr. Squillace. And so it is important to protect the states 
really in adopting good standards; that there be some basic 
minimum Federal floor.
    Mr. Sarbanes. Thank you.
    Mr. Costa. Thank you. The gentleman from Maryland asked 
some good questions, and we appreciate the response of the 
witnesses.
    Our next questioner is the gentleman from American Samoa, 
Mr. Faleomavaega.
    Mr. Faleomavaega. Thank you, Mr. Chairman. I have a lot of 
coal in my district, so I am very interested in this issue.
    Mr. Costa. We appreciate all your questions.
    Mr. Faleomavaega. Thank you.
    I noticed, Ms. Wilson, you stated that 50 percent of 
Maryland's electricity comes from coal. I wanted to ask Mr. 
Goss on a national basis, what is the percentage that our 
nation relies on for its electrical power comes from coal?
    Mr. Goss. As I understand, sir, it is a little bit more 
than 50 percent of the nation's electricity comes from coal-
fired generation.
    Mr. Faleomavaega. OK. I also noticed with interest in the 
hearing that disposal of coal combustion waste is not currently 
subject to Federal regulation, and I noticed also in your 
testimony, Mr. Goss, you do not want the feds to get involved 
with this. Am I correct on this?
    Mr. Goss. We would prefer their guidance, as opposed to 
regulations. I can understand that there is a need for guidance 
for the states to understand what some of the thresholds are, 
but we don't believe that regulations are required. The states 
should implement those themselves.
    Mr. Faleomavaega. So almost a suggestion if it isn't 
broken, why fix it?
    Mr. Goss. Almost to say that.
    Mr. Faleomavaega. Can you say it more emphatically that you 
don't need Federal regulation or Federal involvement in this?
    Mr. Goss. When you look at the total number of facilities 
that are doing disposal, it is a very small number that have 
been identified as potential sources of contamination. The 
health risks have not been proven in all those cases.
    Mr. Faleomavaega. But there seems to be other testimony to 
the contrary. There are some very serious problems attending 
this.
    Mr. Goss. I believe we will hear that. Yes, sir.
    Mr. Faleomavaega. Mr. Squillace?
    Mr. Squillace. Squillace, yes.
    Mr. Faleomavaega. I sense in your testimony that you are 
concerned about the environmental and health consequences of 
what we are doing now with CCW.
    Mr. Squillace. That is correct.
    Mr. Faleomavaega. Can you elaborate just a little further 
on that?
    Mr. Squillace. Sure. The National Research Council 
committee on which I served was involved in studying a number 
of sites where contamination occurred, mostly in impoundments 
and landfills, not so much in the coal mines we were looking at 
because disposal in coal mines is a relatively new phenomenon 
that we have been seeing.
    But the evidence suggested that there was not a whole lot 
of information for one thing about some of the impacts that 
were occurring, and we did see evidence of hazards to human 
health as well as the environment and felt the need to 
recommend minimum kinds of Federal standards that could ensure 
against contamination.
    And so we talked in terms of basic looking at the site 
where you are going to dispose of these materials and looking 
at the materials that you are disposing of to determine the 
extent to which there were toxic constituents that could leach 
into water supplies and the environment, impact wildlife and 
health and human health concerns.
    We looked at issues relating to performance at the site and 
monitoring. Some of the monitors that were put in at some of 
the sites were up gradient from the location of the CCRs, 
suggesting that they would not likely catch contamination 
coming off of that site.
    Mr. Faleomavaega. My time is limited. I just wondered. Is 
there a national standard right now in place?
    Mr. Squillace. No, there is not.
    Mr. Faleomavaega. So any state can do whatever or even by 
being nondiligent, perhaps, and not following up on the 
environmental and the health consequences of the use of this 
CCW?
    Mr. Squillace. That is essentially correct. In coal mines 
the Office of Surface Mining is considering establishing 
standards for disposal there, but they have not done so yet.
    Mr. Faleomavaega. When did this first come about in 
addressing the serious health issues affecting the CCRs or the 
coal waste? The last 10 years? Five years?
    Mr. Squillace. I can't give you an historical reference, 
but we have been disposing of CCRs ever since there has been 
pollution control equipment at coal-fired power plants, which 
goes back many, many years as you know.
    Because it generates a lot of material, you have to do 
something with it. I think the record on monitoring leaching 
and contamination from these sites is not very good. Part of 
the problem that Secretary Wilson identified is the need for 
more research and studying.
    Mr. Faleomavaega. Real quick, because my time is up.
    Mr. Squillace. Sure.
    Mr. Faleomavaega. Which state do you consider perhaps 
having the highest standard?
    Mr. Squillace. The State of Wisconsin I believe has the 
highest standard.
    Mr. Faleomavaega. Wisconsin. Not California?
    Mr. Squillace. I am not familiar specifically with 
California's standards, but I know Wisconsin has----
    Mr. Faleomavaega. Pennsylvania?
    Mr. Squillace. I am sorry?
    Mr. Faleomavaega. Pennsylvania?
    Mr. Squillace. Pennsylvania does have some standards I 
believe. I don't know. I would say Wisconsin probably has 
higher standards. They don't have coal mines either. They only 
dispose of it in impoundments and landfills.
    Mr. Faleomavaega. Thank you, Mr. Chairman. My time is about 
to go off.
    Mr. Sarbanes [presiding]. I thank the gentleman from 
American Samoa.
    I am going to do one two-minute lightning round because I 
just had a real quick question. Mr. Squillace, you may be the 
best person to answer this. What do we do about the existing--
let us take a landfill. Let us take a Gambrills situation.
    You know, let us assume that the linings and other kinds of 
protections that you would put in to prevent leaching----
    Mr. Squillace. Right.
    Mr. Sarbanes.--weren't done, so now you have this 
situation. What do you do about that? Is there kind of a 
redisposal strategy that exists or do you just kind of cordon 
off the site from a health effects standpoint from the 
population that is there?
    Mr. Squillace. Yes. Excellent question. Removing the 
material once it is disposed of is not a realistic option I 
would say. The volume of the material that you tend to be 
dealing with is enormous and so the best you can do is try to 
ameliorate the harm that is coming.
    You have to identify it obviously first. If there is not 
adequate monitoring below the site to determine whether or not 
there is contamination coming off of that site, then you may 
not even know that there is contamination, but once you 
identify it and realize it is a problem probably the best you 
can do is try to figure out a way to treat it if that is 
possible or to manage the water so that it flows in a direction 
where it is not going to cause problems, but very difficult 
once the contamination is identified to deal with it and very 
expensive, I might add.
    Mr. Sarbanes. OK. Thank you all very much. We will bring 
the next panel forward.
    Mr. Costa [presiding]. Just a quick question.
    Mr. Sarbanes. OK. There is a question.
    Mr. Costa. Quickly, Mr. Squillace, I just wanted to pursue 
where we left off after my questioning in terms of how you 
would develop your recommendation from the committee.
    Mr. Squillace. Yes.
    Mr. Costa. If the Federal Government through the 
Environmental Protect Agency were to set standards, say--I am 
being arbitrary. I am picking numbers out of the air, but 2010, 
2015, 2020----
    Mr. Squillace. Yes.
    Mr. Costa.--and said states, you determine what are the 
best management practices in your respective state with your 
regional challenges that you have to deal with.
    Do you think that would work in terms of a way to be fair 
and not to be overly prescriptive?
    Mr. Squillace. So a program where the Federal Government 
sets minimum kinds of basic standards and the states then 
develop those standards and implement them in their own states?
    Mr. Costa. Right.
    Mr. Squillace. Yes, I think that would be a reasonable 
approach that could be taken here as long as those minimum 
standards were set and were clear for the states.
    As I said, I think the NRC committee's report really does a 
nice job of outlining the kinds of minimum standards that could 
be used without being overly prescriptive.
    Mr. Costa. Mr. Goss, do you think that the industry could 
comply with that kind of a parameter that would create 
flexibility and in a period of 10 years reach the goals that we 
are seeking to reach?
    Mr. Goss. Sir, since I represent the ash industry rather 
than the utilities sector I am a little bit uncomfortable 
answering that.
    It seems like a reasonable timeframe. The Clean Air 
interstate rule and other regulations have done similar 
processes.
    Mr. Costa. Yes. Well, the timeframe may not be precise. I 
am again just talking about a process.
    It seems to me that if the Environmental Protection Agency 
were to set goals, parameters with timelines that made sense, 
and it may not be within the 10 year period, but what I am 
trying to understand is would industry be able to accommodate 
that on a region-to-region basis?
    Mr. Goss. It would seem so, sir. I think the challenge 
would be defining the risks that would prompt whatever the 
regulations would be based upon to determine are these 
reasonable risks. What are the triggers or the points?
    Mr. Costa. Do you mean a risk assessment versus risk 
management?
    Mr. Goss. Yes, sir.
    Mr. Costa. OK. All right. I have gone way beyond my time, 
but I did want to follow up on those two points.
    I thank the panel, and we will go on to the next panel. All 
right. I believe we have everyone on our second panel here. I 
want to introduce our witnesses.
    We have Mr. Charles Norris, a consultant with GeoHydro, 
Inc.; Dr. Thomas Burke, Director of the Risk Sciences and 
Public Policy Institute at Johns Hopkins Bloomberg School of 
Public Health; and we have Ms. Lisa Evans, a project attorney 
for Earthjustice. I think that constitutes the four witnesses.
    The same rules apply to the second--I am sorry. And Mr. 
Norman Harvey, community activist from Maryland. Sorry. I 
turned two pages over. But it is nice to have all of you here 
this morning, and we thank you for your participation.
    As I was about to say, the rules for the second panel are 
the same rules that we applied to the first panel, and that 
means that those timing lights in front of you give you five 
minutes. When it is green, those are your first four minutes. 
When it turns yellow you have a minute to complete your 
statement, and we do need to stay on that timeline to be fair 
to all the witnesses and to be fair to the Members of the 
Subcommittee you also have questions as well.
    So with that understood the Chair would now like to 
recognize Mr. Charles Norris to testify for five minutes. Mr. 
Norris?

           STATEMENT OF CHARLES NORRIS, CONSULTANT, 
                         GEOHYDRO, INC.

    Mr. Norris. I would like to thank Chairman Costa and the 
Members of the Subcommittee for the opportunity to testify 
today. My background, credentials and disclaimers have been 
provided to the Subcommittee in writing.
    In my brief oral testimony I would like to address limited 
considerations from my written testimony rather than simply 
read from it. My focus is on CCW placement in the environment, 
as opposed to products that would constitute reuse.
    Part of the difficulty before the committee is the 
complexity within the question. There is not a substance that 
is CCW. There is not one physical, chemical, textual and 
hydraulic description that is generally characteristic of all 
CCWs. All CCW is not equally toxic nor equally benign. One size 
does not fit all.
    Similarly, there is not a single site into which people 
want to place CCW. Each placement site, like each CCW, borders 
on being unique. All placement sites are not equally risky nor 
equally protective. One size does not fit all.
    Since the waste is complex and source specific and since 
placement sites have individual properties dependent upon local 
conditions, is it logical or even possible to regulate at the 
Federal level? Doesn't state control--it is more local--make 
more sense? Why Federal action to address issues of risks to 
health and the environment?
    The short answer is that state regulation of these wastes 
has failed and is failing. Not all states are equally at fault. 
Some strive mightily to keep regulations in effect that protect 
all of their citizens. Some have regulations that protect some 
of their citizens, but at the expense of others. The disparity 
among states or within a state encourages what has been 
referred to today as the proverbial race to the bottom.
    A Federal framework for the environmental placement of CCW 
is needed. That framework need not--indeed should not--be an 
attempt to micromanage the environmental placement of CCW. Like 
other environmental regulations, Federal CCW rules should set 
common sense limits on any race to the bottom among states 
inclined toward such competition.
    The Federal framework would guarantee citizens from various 
states that their protection from CCW risks can be no less than 
the Federal minimum. The Federal framework would ensure that 
each citizen of a single state, whether living in quarry belts, 
mine country or municipalities, would equally have the 
protection of the Federal framework.
    The need for Federal intervention is discussed in my 
written testimony, and I will not repeat it now. Details of a 
proposed Federal framework are also in my written testimony. 
There are four of those elements I would like to emphasize.
    First, the framework must use meaningful testing of CCW, 
including when and how it will react with other site materials. 
The testing being used now is simply and unquestionably 
inadequate to demonstrate the efficacy of environmental 
placement, mine or non-mine.
    Literature shows that the EPA and its Science Advisory 
Board know it. The NRC knows it and discussed it, and anyone 
who has looked into it knows it. A coal operator cannot use the 
TCLP or equivalent test on spoil, but the same state regulators 
blithely accept these tests for the environmental placement of 
coal combustion waste. These tests are no more useful for 
predicting or understanding CCW behavior than they are for 
predicting spoil behavior.
    The framework must focus attention on environmental 
placement of CCW in mines. The post-mining hydrologic 
environment is highly complex when compared to that of unmined 
terrain. CCW, like mine spoil, is potentially highly reactive 
and far from equilibrium of the placement environment. Using 
CCW to counter some of the risks that result from mining is 
conceptually attractive but requires a much higher level of 
characterization of spoils, CCW and the mine setting to reduce, 
not aggravate, the risk.
    The framework should require monitoring that will look for 
CCW contaminants at times and places they can be identified. Up 
gradient and in-waste monitoring is part of that system. These 
simple elements are seldom part of monitoring in mines today 
and never the case in some beneficial use placement programs.
    Finally, CCW is an industrial waste stream, and regulating 
CCW is rightfully under the purview of experts and regulators 
of waste. Since U.S. EPA would presumably regulate the 
environmental placement of CCW outside mines as part of a 
Federal framework, it would be redundant to develop a 
comparable team of waste experts among mining regulators to 
implement the framework in mines. It should be left with the 
EPA.
    Again, I thank you for the opportunity to testify.
    [The prepared statement of Mr. Norris follows:]

       Statement of Charles H. Norris, Consultant, GeoHydro, Inc.

    I would like to thank Representative Costa and the members of the 
subcommittee for the opportunity to testify today.
Introduction
    The question the subcommittee is exploring carries important, 
implicit understandings in its phrasing. There is implicit 
understanding that coal combustion waste (CCW) exists. There is 
implicit understanding that there are health and environmental risks 
with CCW. There is implicit understanding that the risks need be 
addressed. There is implicit understanding that federal action is 
needed to address the risks. I share the each of those understandings 
with the author(s) of the question, although I must admit resistance in 
reaching the last understanding.
    My understandings are founded in 5 1/2 decades of personal 
observation, management, and study of CCW. In the 1950s I became 
responsible for removing, carrying, and dumping the ``clinkers'' from 
our coal furnace. They were put to ``beneficial use,'' providing 
traction and filling ruts on the lane coming up the hill to the 
farmhouse. In the 1960s, I became painfully aware that even beneficial 
use of these materials carries risks, as did everyone else who tried to 
skate on an icy road after the township trucks had spread cinders or 
who tripped on the cinder track during the hand-off in the mile relay. 
In the 1960s and 1970s, I was episodically subjected to the rain of fly 
ash and the taste and feel of sulfur dioxide in my throat when the wind 
was from the university's power plant in Champaign, Illinois. Since the 
mid-1980s, a significant portion of my professional career has been the 
study and evaluation of CCW, now remove from the air, and how best to 
manage it. My client base through the years has included individuals, 
coal companies, environmental organizations, power companies, 
governmental units, and citizens' groups.
    My testimony today represents my personal understanding and 
opinions, and is not intended to represent those of any other 
individuals or organizations. My opinions and understanding have 
evolved and should continue to evolve as I learn more. If they don't, I 
should retire. I am not being paid to be here and my preparation for 
this hearing is similarly donated, although I am seeking reimbursement 
of direct travel expenses.
    I will organize my testimony today around the implicit 
understandings in the question before the subcommittee, largely 
providing technical background on CCW based upon my personal 
experience. Consistent with the question before the subcommittee, I 
will use the term ``coal combustion waste.'' Some of my testimony will 
touch on language; the nomenclature and rhetorical battle over these 
materials. That battle contributes to the need for federal intervention 
to reverse the deplorable and deteriorating conditions manifest under 
some state management practices for CCW and begins to spread to other 
waste streams. I will illustrate my points with examples from my own 
experience and have included studies and research with my testimony to 
that end. These tend to be lengthy, and some are technically detailed. 
They are not provided with the expectation that you will fully absorb 
them. Rather, I hope they will convey the complexity of these materials 
and of their relationships to and reactions with the environments where 
they are increasingly placed. Generalization about these materials are 
difficult, and I hope the supplemental materials help illustrate that.
    The difficulty with generalization is seen in the implicit 
understanding that CCW exists. Certainly the burning coal leaves behind 
material after combustion; tens of millions of tons of each year. But 
it's not a single material. There is the first-order classification of 
these materials as fly ash, bottom ash, flue gas desulfurization (FGD) 
materials, and boiler slag, each of which is very different. The 
character and composition of these individual materials are themselves 
variable. They varies over the range of combustion and pollution 
abatement technologies that are used. They change as the compositions 
of the fuels change. They are dependent upon other waste streams that 
are mixed and co-managed with them. Often, state regulations are 
broadened to include not just the materials that remain after ``coal 
combustion,'' but the materials that remain after ``fossil fuel 
combustion.'' Fossil fuel combustion typically represents a mix of 
little 50% coal with some other fuel; natural gas, petroleum liquids, 
wood, wood pulp, shredded tires, auto fluff, etc. There is nothing 
similar between the FGD sludge produced by a dual-alkaline system 
working on the stack gases of a pulverized-coal conventional plant 
burning Wind River Basin coal from Wyoming and the bottom ash from a 
fluidized bed combustion unit burning 50% coal, 30% gob, and 20% 
shredded tires. Yet, these two materials, among a host of comparably 
dissimilar materials, are within the term ``coal combustion waste'' in 
the question before the subcommittee, and all need fall under the 
rubric of federal control.
    The challenge at the federal level of addressing health and the 
environment from risks of this complex of materials does not lie with 
legislating the detailed management of each material. It lies with 
producing a framework that provides regulation of each of these 
materials in a manner that is protective of health and the environment 
when implemented by state programs. The implementation would be based 
upon individual CCW characteristics, the nature of its placement and 
use, the environment of its placement and use, and the time-dependent 
changes that CCW and the environment work upon each other. The model 
for this framework is not unlike that of SMCRA or the CWA. I believe 
producing the framework will be a challenge because such a framework 
would be a sea change from the approach taken today by some states in 
response to the systematic hesitation and reluctance of federal 
regulators to meaningfully regulate these materials.
    In the remainder of my comments, I will briefly outline examples of 
the need for federal intervention based upon what has and is happening 
under state regulatory programs. I will then provide an outline of 
issues the federal framework will need to address to be effective. 
Finally, I will discuss the issues of nomenclature and rhetoric that 
are driving not only the management of CCW but increasingly undermining 
the responsible regulation of other wastes streams.
The Need
    Placement of CCW in the environment creates environmental damage 
and human health risks. Not every CCW. Not all placements. Not always 
without some offsetting benefit. However, documented degradation 
coincident with the placement of CCW in the environment occurs so 
frequently, in such a wide range of settings, that there must be the 
presumption that unacceptable risk to health and the environment will 
occur as a result of such placement. The frequency of such degradation 
is particularly disturbing when one considers, first, how rarely such 
placement is accompanied by monitoring at times and places capable of 
detecting a problem, and second, how frequently the some state agencies 
ignore the degradation and allow it to continue. Too often, there is no 
agency response to a problem at all or until affected citizens have had 
to file legal action for relief. Further, under existing and evolving 
state programs, the characterization of placement sites is being 
reduced and monitoring of placed CCW is occurring less often and for 
shorter periods of time. Intervention to prevent risk to health and the 
environment from degradation is increasingly impossible because there 
is no observation.
    Examples of degradation are readily found despite the paucity of 
sites with monitoring data that allow evaluation. The following are 
some representative examples of the variety and range of problems with 
in-environment placement of CCW:
    Fly ash was placed in an open, unlined excavation as permitted 
landfill disposal adjacent to Town of Pines in Indiana beginning in the 
1970s. Leachate from that ash, passing under the residents' houses, 
ruined their water supply on its way to local drainage to Lake 
Michigan, forcing them to accept municipal water as a replacement. The 
site is undergoing an RI/FS under the SuperFund program.
    In Maryland, operators of ash disposal pits are today wringing 
their hands over ruined residential wells, questioning how they could 
have ever anticipated such problems from benign materials compliantly 
disposed.
    In Illinois, CCW placement as permitted landfill disposal in a 
dolomite quarry degrades ground water as a result of off-site, third-
party changes to the hydrogeology that had been relied upon to contain 
the waste.
    In Pennsylvania, regulators document ground- and surface water 
contamination at permitted CCW disposal facilities that in cases rely 
only CCW for containment. Dilution by the receiving body of water is 
accepted as a response by the agency.
    In Colorado, the USEPA fell victim to beneficial use. Uranium 
tailings at a site within Denver were ``stabilized'' using CCW with a 
liming additive. The objective was to allow reburial of the stabilized 
tailing on-site, rather than expensive transport and disposal at a rad-
waste facility. The ``beneficial use'' effect lasted only a few months 
before uranium mobility from the site increased beyond the pre-
treatment levels, necessitating the transport and landfill disposal of 
not only the uranium wastes but also the admixed coal combustion 
materials.
    Contamination examples are also common when CCW is placed in coal 
mines. The Clean Air Task Force (CATF) contracted an exhausting, multi-
year study of the contamination at coal mines that placed CCW as part 
of the Pennsylvania mining program for beneficial use of CCW. That 
study found in agency permit files data showing CCW contributions to 
rising contamination at the majority of the sites with sufficient data 
to make a determination.
    Two of the accompanying documents I am providing with my testimony 
discuss contamination resulting from the placement of CCW in mines. 
Some of these placements were beneficial-use placement and some simply 
disposal placement. In my 2003 report ``Minefill Practices for Power 
Plant Wastes, An initial Review and Assessment of the Pennsylvania 
System,'' I discuss my preliminary review of 10 mine sites in 
Pennsylvania that saw to CCW placement and showed subsequent related 
contamination. Many of these sites were studied in more detail as part 
of the CATF study mentioned above. The second paper, ``Environmental 
Concerns and Impacts of Power Plant Waste Placement in Mines,'' was 
presented in 2004 and published in Proceedings of State Regulation of 
Coal Combustion By-Product Placement at Mine Sites: A Technical 
Interactive Forum, Kimery C Vories and Anna Harrington, editors, by 
U.S. Department of the Interior, Office of Surface Mining. This paper 
discusses eight mine sites in Pennsylvania (some duplicated in the CATF 
study), West Virginia, Indiana, and New Mexico where CCW placement can 
be tied to subsequent ground water contamination.
    Where data exist than can be assessed, the frequency of 
contamination from the placement of CCW is attributable largely to 
weakness in state programs for site characterization waste and waste 
characterization. The dearth of interpretable data from most sites is 
attributable to poor site characterization, poor waste characterization 
and inadequate monitoring. In the discussion of each below, it should 
be apparent that the three weaknesses are intimately related.
Monitoring
    The first requirement to detect the impacts from the placement of 
CCW in the environment is a monitoring system and program. One cannot 
document impacts, or lack of impacts, due to CCW placement without a 
monitoring program that looks for such impacts and a monitoring system 
that is capable finding such impacts when they occur. Yet, as more and 
more CCW is placed under programs of beneficial use, there is an ever-
expanding population of placement sites with no monitoring.
    To detect impacts from the environmental placement of CCW, a 
monitoring system must monitor the path(es) of contaminant migrating 
from the placement area. This requires there have been a site 
characterization that establishes the migration direction(s), including 
seasonal variations, of contaminants from the placement area via air, 
surface water, and ground water. Further, since placement of the CCW 
can modify these flow directions, the characterization needs to 
describe the medium-specific migration directs that will exist after 
CCW placement, not merely conditions existing prior to placement.
    To detect impacts from the environmental placement of CCW, a 
monitoring system must be able to detect and identify all contaminants 
migrating from the placement area. This requires there have been waste 
characterization that identifies all mobile concentrations of 
contaminants from the waste, seasonal variations in the mobile 
contaminants and their concentrations, and long-term changes in the 
population of mobile contaminants.
    To detect impacts from the environmental placement of CCW, a 
monitoring location must be active when contaminants from the placement 
area are moving through the monitoring location. This requires there 
have been site characterization that is sufficient to project 
contaminant migration times to a point of observation. It also requires 
a monitoring program that remains in place long enough for contaminants 
to reach the monitoring point.
    To detect impacts from the environmental placement of CCW, a 
monitoring system must be able to detect and identify contaminants 
mobilized by site leachates, whether or not the contaminant is itself 
released from the placement area. This requires there have been waste 
characterization and site characterization that is adequate to simulate 
the reactions between waste leachate and site soil and rock materials 
in contact with the leachate. For example, one presumed beneficial use 
for CCW is alkaline addition to areas that have long suffered from acid 
mine drainage. However, apparently obvious solutions can have 
unfortunate consequences. I have included another paper with this 
testimony that illustrates one example. My 2005 paper ``Water Quality 
Impacts from Remediating Acid Mine Drainage with Alkaline Addition'' 
explores the geochemistry that supports observations of arsenic 
contamination following the use of CCW as an alkaline addition, even 
when there is no evidence of excessive arsenic in the CCW leachate 
itself. Alkaline leachate from the CCW mobilizes previously-sequestered 
arsenic from on-site sediments.
Site characterization
    Adequate site characterization is seldom performed prior to 
approval for environmental placement of CCW. Depending upon the state, 
no site characterization may be required prior to some beneficial use 
placement. In other cases, something as simple as establishing the 
depth to water table prior to placement may be all that is required. 
Placement for beneficial use does not preclude negative environmental 
or health impacts, nor ensure that there is even a net improvement when 
benefits are weighed against negative impacts. Site characterization is 
as necessary at sites of environmental placement for beneficial use as 
for disposal.
    When the placement activity includes site characterization, that 
characterization virtually always is of the conditions that exist prior 
to, not subsequent to waste placement. Seldom does CCW placement leave 
the hydrologic balance as it existed before placement. As a result, 
monitoring systems are designed to measure a flow system with no waste 
in it, not the one with waste present. This inadequacy is dramatically 
in evidence when considering placement in areas that have been mined or 
quarried. Coal mines and bedrock quarries typically entail huge 
dewatering programs. Coal ash placement, reclamation and bond release 
can occur decades before the mined areas reach full, equilibrium 
recharge, and during that time ground water is flowing into the void, 
not from it. The monitoring system, when there is one, is monitoring 
background water flowing toward the placement area, not water from the 
placement are and cannot possible convey information about the health 
or environmental risks associated with the eventual hydrologic system 
that will finally develop.
    Site characterization seldom includes a characterization of the 
anticipated time-dependent variations of the site hydrogeology. This 
problem is very commonly observed for placement in coal mines. The 
Prides Creek Mine example in the previously cited ``Environmental 
Concerns and Impacts of Power Plant Waste Placement in Mines'' shows 
one case. Even when there is an intra-mine monitoring point that shows 
the strong temporal variability of water quality and ground water 
heads, there is no characterization to provide context for those 
changes.
Waste Characterization
    This aspect of the various state-managed CCW programs is so weak as 
to be nearly meaningless in most states. Typically state programs use 
the results of the TCLP (toxic characteristics leaching procedure) or 
the SPLP (synthetic precipitation leaching procedure) as the predictor 
of the potential for placed CCW to impact health or the environment. 
This myopic misuse of laboratory index tests is probably the single 
greatest cause of the disconnect between the contamination that occurs 
from environmental placement of CCWs and what is promoted by advocates 
and regulators of the materials.
    There is no justification for states to use these index laboratory 
tests as surrogates for determining likely field leachate for CCWs to 
be placed. These tests were not developed as predictors of field 
leachate, they are not designed to produce field leachate, and they 
have been repeatedly demonstrated incapable of doing so. The National 
Academies of Science understand this. The USEPA Science Advisory Board 
understands this. Yet, based upon the results of these inappropriate 
tests, multi-million ton masses of CCWs are allowed by some states to 
be placed without confinement and without monitoring in high risk 
hydrologic environments adjacent to private well users. And, the 
producers of the coal combustion and the regulators who approve it 
waste feign surprise or innocense when wells become contaminated.
    If waste is to be placed in the environment, whether for disposal 
or beneficial use, complete and meaningful characterization is quite 
simply mandatory if the placement is to be protective. That testing, to 
be adequate for both instantaneous characterization of the waste and 
the design of the initial monitoring system, should include analyses of 
grain size and texture, elemental composition, chemical composition, 
mineralogy, rheology, hydrological properties, initial leachate 
compositions, and reactive potential with non-waste site soils and 
rock. Only with such characterization can any benefits be weighed 
against impacts and risks of placement. And only with such 
characterization can adequate monitoring be designed to confirm design 
predictions and measure site performance.
    Finally, characterization of the CCW requires consideration of the 
time factor. The most abundant CCWs are highly reactive. They form in 
an environment that is completely out of equilibrium with the placement 
environment. Water is a solvent that carries dissolved contaminants 
away from the placement area and facilitates reaction with site soils, 
rock, and water. But it is also a major reactant with the wastes. Fly 
ash fresh from the burner is not the same material as fly ash that is 
quenched and sluiced to a pond. Nor is the fly ash that is dredged from 
the pond the same material as the fly ash in a pit five years after 
placement. CCWs evolve continually for years.
    A test of ash fresh from the burner--whether for composition, 
mineralogy, texture, strength or leaching--will be different from that 
same ash after quenching and sluicing, which will be different after 
placement, which will be different 10, 20 and 50 years after placement. 
As the in-place ash evolves, so will the composition of the leachate 
from the ash. Contaminants that were sequestered in the young ash can 
become mobile the ash matures. Concentration of contaminants can rise, 
fall, and rise again, depending on the stage and sequences ash 
weathering. Eventually the glass component of some ashes can devitrify, 
producing late stage mobility of previously sequestered contaminants.
    CCW characterization as performed today in the state programs 
virtually ignores the time factor and the recognition that ash will 
ultimately evolve to something quite far from its starting point. This 
is somewhat ironic with respect to CCW placement in coal mines. State 
mining regulators would laugh an operator from their offices who 
seriously proposed to use TCLP or SPLP to evaluate the acid producing 
potential of mine spoil. Yet, under state programs, those same 
regulators blithely allow those tests to predict the alkalinity that 
will be needed from the ash to neutralize delayed acid generation when 
CCW is used for alkaline addition. The 2002 evaluation I performed for 
Anker Energy and the West Virginia Highlands Conservancy, described in 
the attached paper ``Assessment of the Anker Energy Corporation 
proposal for mining and reclamation, Upshur County, West Virginia,'' 
undertook a far more detailed evaluation of initial leaching 
characteristics. That evaluation, confirmed by an on-site pilot study, 
established that for the ash in question, the bulk of the ash's 
alkalinity would immediately flush from the placement area, leaving 
insufficient alkalinity available when acid mine drainage would be 
generated.
    So long as waste characterization is driven by TCLP and SPLP 
results, there will be no reliability in the predicted results of CCW 
placement in the environment. And, based upon observed changes proposed 
and implemented in state programs, including increasing CCW masses in 
and approvals of unmonitored, unconfined placement for beneficial uses, 
it is apparent that direction is needed at the federal level.
The Framework
    The successful construction of a new framework to address risks 
associated with CCW will require whole-hearted acceptance of the core 
element implicit in the question before this subcommittee, that it is 
appropriate for the federal government to step in to address the 
problems inherent in the management of these materials. Key elements of 
that framework are described in this section. Comparable elements of a 
framework applicable specifically to mine placements are described in 
the 2003 paper I produced for the USEPA and have attached with my 
testimony, ``Developing Reasonable Rules for Coal Combustion Waste 
Placement in Mines. Why? When? Where? How?''
General Considerations
    CCW is an industrial solid waste. Its placement must be in 
compliance with solid waste laws, clean air laws, and clean water laws. 
If it is placed or used in coal mines, placement also must be in 
compliance with state and federal surface mining and reclamation laws. 
State policy cannot be less protective than federal law.
    Responsibility for the waste and any resulting damage remains with 
both the waste generator and the operator of the waste placement site.
    Regulations must provide enforceable standards of both condition 
and performance, not merely discretionary guidelines. Oversight of the 
program must be by professionals trained and knowledgeable in waste 
disposal law, regulation, policy and practices. CCW placement site 
operators must demonstrate knowledge of, and the capability to fully 
implement waste disposal law, regulation, policy and practices.
    Regulations must allow for public participation in the approval 
process, there must be the right of appeal, and cost recovery for 
successful appeal and citizen enforcement must be included.
Waste Characterization
    Each CCW proposed for environmental placement shall be analyzed for 
grain size and texture, elemental and chemical composition, mineralogy, 
rheology, and hydrological properties. The constituent list will 
include all reasonably anticipated constituents of CCW and include 
tests for total radioactivity and radionuclides with environmental or 
health standards, and tests for polyaromatic hydrocarbons and other 
products of incomplete combustion of environmental and health concern.
    When multiple CCWs are proposed for placement in a single location, 
the wastes shall be characterized individually, as above, and as a 
composited sample proportionate to the masses of the individual waste 
streams. This applies to both multiple waste streams from a single 
generator and waste streams from multiple generators.
Leachate Characterization
    Prior to permit approval, the placement site operator will 
demonstrate to the extent possible the composition or limits on 
composition of the leachate(s) that will form at the site under the 
conditions of placement. This demonstration may include field testing, 
laboratory testing (sequential batch tests, column tests, etc.), 
computer modeling and/or other appropriate methodologies. The analyte 
list will be the same as for waste characterization.
    For each placement area with different waste streams deposited, the 
placement site operator will install a monitoring well capable of 
sampling the leachate(s) that form in the field. Field leachate(s) will 
be sampled and analyzed for the same constituent list as for waste 
characterization.
Site Characterization
    Site characterization will be comparable to that required for solid 
waste disposal facilities designed for wastes of comparable physical 
and chemical properties, and will use methodologies and protocols 
appropriate for solid waste disposal facilities.
    Site geology will be characterized sufficiently to demonstrate the 
structure; bedrock stratigraphy; sediment, soil, spoil, fill, and waste 
distribution, composition, and texture; and geomorphology that will 
exist at and under the placement site(s) and in the adjacent areas.
    Site hydrogeology will be characterized sufficiently to demonstrate 
the ground water and surface water systems and exchanges between them 
before, during and after CCW placement. The site characterization will 
include determining recharge areas, discharge areas, base flow 
contributions, hydraulic gradients, dominant flow paths, fluxes, 
velocities, travel times, physical properties (permeabilities, 
porosities, pore systems) for each material including CCW, water users 
and usable water resources, water chemistries, and the range of 
temporal variations typically experienced and likely to be experienced 
by any of these parameters. The description of this characterization 
will include a projection of the post-placement conditions.
    Site characterization itself will be performed in a manner that 
will not be environmentally damaging to areas adjacent to or beneath 
the placement site(s).
    Due to the highly transient stresses that will be imposed upon a 
placement facility during the construction, use and recovery, the site 
characterization should be continually updated through the life of the 
project as more data become available.
Fate and Transport of Leachate
    Prior to issuance of the permit, the evolution of the chemistry of 
expected leachate(s) must be evaluated for each of the dominant flow 
paths as contact with ground water and migration through soil, and/or 
rock occurs. If the flow path involves the transport of leachate to a 
surface water system, the evaluation must include the evolution of the 
chemistry with respect to reactions with the mixing waters and the 
gases of the atmosphere. The evaluation will include major-, minor-, 
and trace-element compositions, and may be based upon field testing, 
laboratory testing (sequential batch tests, column tests, etc.), 
computer modeling and/or other appropriate methodologies.
    If, after collection, actual field leachate differs significantly 
from the projected leachate(s), the evaluation(s) will again be 
performed using the field leachate composition(s).
    The impacts of the leachate(s) on biota or on the uses of the water 
at receptors or compliance points will be evaluated, and the 
composition of the leachate(s) relative to applicable standards.
Monitoring
    Prior to issuance of the permit, air, ground water, and surface 
water monitoring will be performed that is sufficient to document 
ambient air, ground water, and surface water quality; surface water 
quantity; and flux exchanges between ground and surface water for the 
range of temporal variations typically experienced at the placement 
site. Methodologies and protocols appropriate for waste disposal 
facilities will be used.
    During the life of the placement operations, ongoing air monitoring 
of the placement work site and adjacent areas will be done for both 
dust and fugitive waste. Surface water discharges from the placement 
site will monitored for the full list of constituents used in 
characterization. Ground water will be monitored for both heads and 
chemistry, and surface water monitored for chemistry. The head data 
will be used to evaluate the validity of the site characterization and 
water chemistry will be used to verify that the CCW placement operation 
is not having negative impacts on downgradient or downstream water 
quality. Methodologies and protocols appropriate for waste disposal 
facilities will be used.
    After placement is completed, ground and surface water monitoring 
will occur at locations and from wells capable of sampling leachate(s) 
from the placement site. Post-placement monitoring will continue until 
it is determined that leachate(s) have reached the wells, that site 
performance is as predicted in the permit, that the impacts and 
compositions at compliance points or receptors are within standards or 
are acceptable in the absence of standards, and are stable. 
Methodologies and protocols appropriate for waste disposal facilities 
will be used.
Compliance, Enforcement and Remediation
    Compliance standards for each constituent of potential concern must 
be defined for surface water discharges, base flow discharges, 
placement-site air quality, fugitive dust off-site, fugitive waste off-
site, and ground water.
    Enforcement procedures must be defined and in place prior to permit 
issuance.
    Remediation standards and procedures must be defined, and 
sufficient financial surety to perform necessary site, surface water, 
or ground water remediation must be demonstrated and maintained until 
monitoring is no longer required as provided above.
Isolation of Waste
    If characterization and fate and transport analyses do not 
demonstrate that compliance will occur without barriers and or other 
containment procedures, the CCW placement cannot occur without extra 
measures to demonstrate compliance with performance requirements.
Informed Consent of Property Owners
    Existing property owners must be advised of the following as part 
of obtaining consent for placement: a) the proposed activity is solid 
waste placement, b) the CCW will in all likelihood be or contain toxic 
forming material, c) the location(s), depth(s), and tonnages that may 
be placed of on the property, d) the source of the CCW(s), e) the 
composition of the CCW(s) and leachates, and f) that future buyers of 
the property have the right to disclosure of the CCW placement 
activity.
    If CCW placement occurs at any surface mine, whether pre-law or 
post-law, the surveyed location, depth, quantity and character of the 
CCW shall be recorded with the deed for the property. This applies to 
state, corporate, private or abandoned mined lands.
Nomenclature and Rhetoric
    Much time and fury is devoted to the nomenclature associated with 
the materials that remain after the combustion of coal with or without 
other fuels, far more time than is necessary or constructive.
        It's coal combustion (CC) waste. It's CC product. It's CC 
        byproduct. It's CC residual. It's not ``waste,'' because it can 
        be reused. Until it is used in a product, it is a waste. It's 
        pejorative to use ``waste'' and that makes it harder to 
        convince people to reuse it. Euphemistic phraseology lowers the 
        perception of the need for protection. Dumping of these 
        materials should be managed like the disposal of any other 
        waste. It's not being disposed, it's being beneficially used. 
        Ad nauseam.
    There is a method to the verbal madness, of course. If one defines 
the vocabulary, one controls the debate. It's why trade organization 
employees monitor and control even the text of Wikipedia entries on 
combustion wastes.
    Although the policy debate is influenced by the vocabulary, the 
reality and the science are not. Filling an open, unlined pit in 
Indiana with fly ash, while calling it landfill disposal, ruined an 
aquifer and created a SuperFund site. Had it been called beneficial 
use, it would have still ruined the aquifer and created the SuperFund 
site. There would be no lower environmental and health risks were it 
called coal combustion product instead of coal combustion waste. The 
ill-chosen placement methodology of inappropriate CCW created the 
problem, not the nomenclature, and changing the labeling does not 
change the chemistry or the hydrogeology a whit.
    However, increased sophistication in language management has 
changed CCW regulation in Indiana. Because the Pines ash would pass the 
TCLP/SPLP characterization criteria, placement of Pines-like ash in a 
Pines-like pit today can be called beneficial use, structural fill. For 
beneficial-use placement as structural fill, Indiana doesn't require 
ground water monitoring, the kind of monitoring that ultimately allowed 
the citizens Pines to document their contamination. The program 
improvement for industry is that industry can claim a higher rate of 
``reuse'' of this CCW for exactly the same placement practices. The 
program improvement for Indiana is that it needn't see a problem. And 
neither industry nor Indiana has to deal with a SuperFund site. If the 
next Pines is to be avoided, its citizens need help from Washington.
    Don't mistake these comments as a criticism focused on Indiana or 
of pit-filling. Recently, in Virginia, several millions of tons of a 
CCW source that created contamination problems at a controlled, 
monitored, on-site landfill was approved for the ``beneficial use'' of 
sculpting rolling terrain for a golf course. The placement is without 
containment, without leachate collection, and without the monitoring of 
a disposal facility than could detect a problem. The site 
characterization consisted of determining the elevation of the water 
table pre-project, not after completion of the placement. The waste 
characterization was by TCLP and/or SPLP. It is in compliance with 
Virginia regulations. Media and citizen concern over the disconnect of 
problems at a permitted waste disposal facility and open placement in a 
neighborhood led to this spring to testing of residential wells 
adjacent to the placement area. The initial, limited testing by the 
city, not the Commonwealth, identified problematic concentrations in 
some wells of boron, a common contaminant in fly ash. Further 
evaluations are continuing by citizens and by the city.
    Time and further evaluation will tell if the golf course is an 
early-stage Pines. But, the evolution so far is eerily similar to that 
at Pines. Local investigation finds a water problem with citizens' 
drinking water. Regulators assure that the placement in the 
neighborhood of a waste with a history of problems was done in 
compliance with their regulations. ``But, what about the water?'' ``The 
waste placement complies.'' Something isn't right, and needs to be 
fixed.
    In an absence of meaningful direction and oversight at the federal 
level, state regulation has entered a race to the bottom with respect 
to regulatory control over placement of CCW. The definitions of 
``beneficial use'' are expanding and the criteria of a waste to qualify 
are relaxing. There is a concomitant relaxation of management controls, 
waste and site characterization, and monitoring. The cycle creates the 
statistical illusion of increased ``reuse'' while setting up long-term 
environmental and health problems in state after state; in mines, 
gravel pits, quarries, or simply fills. Increasing, the public is blind 
to the development of problems. And, as one state relaxes the controls 
yet further, others competitively follow.
    As the acceptance of the beneficial use approach deepens at the 
state level, documentation of the problems becomes increasingly 
difficult because there are no monitoring data. One actually hears the 
argument in favor of beneficial use that there are no problems seen at 
beneficial-use sites, unlike waste disposal sites. My grandson, by age 
three, knew that covering his eyes didn't make spilled juice go away. 
It is sophistry to argue that no evidence of impacts, as the result of 
not looking for impacts, is affirmative evidence of no impacts. Yet 
that is just what some proponents of environmental placement of CCWs 
suggest.
    There is another problem developing out of the CCW management 
approach that, while unrelated directly to CCW, will be impacted by the 
actions of this committee. Until credibility is brought to the 
regulation of coal combustion materials, there will be increasing 
collateral damage as well. State regulators are being approached by 
industry to implement the beneficial-use approach to other waste 
stream, particularly with respect to the misuse of the result of TCLP 
and SPLP. Functionally, the argument becomes, ``If I can control the 
chemistry of a handful my waste for the eighteen hours of your lab 
test, I should be allowed to place my waste in the environment, without 
containment and without monitoring, just like you allow for CCW, for a 
beneficial use.'' The argument is even being extended by one Illinois 
company for delisting of at least one listed RCRA hazardous waste.
Conclusion
    A rose by any other name still has its thorns. Labeling an 
environmental placement of CCW a beneficial use does not reduce damage 
that may be done or the risk to health and the environment. If a CCW 
has a legitimate beneficial impact, one that can demonstrated and 
quantified, do so, and analyze the entire costs and risks of the 
placement, and compare that with quantified benefits. Maybe for a 
particular placement, the benefit is projected to exceed the impacts 
and increased risk to health and the environment. Even when so, 
stewardship of the placement is critical to verify nothing was done 
that wasn't projected. But that approach is not the approach today, and 
the shift will have to come with federal involvement.
    As a society, we used federal action to reduce the health and 
environmental risks of the physical and chemical rain from the stacks 
decades ago. For most of us, the air improved, and with it, the 
environment and our health. But the toxins don't go away; we just 
capture them. Just as a federal framework was needed then to guide 
states in addressing risks to health and the environment by dispersing 
these materials, it is needed again to address the risks from the same 
material, now accumulated instead of dispersed.
    Again, thank you.
    [NOTE: Attachments have been retained in the Committee's official 
files.]
                                 ______
                                 
    Mr. Costa. Thank you very much.
    Our next witness to testify is Dr. Thomas Burke, the 
Director of Risk Science and Public Policy Institute at Johns 
Hopkins University and the School of Public Health.

 STATEMENT OF THOMAS BURKE, DIRECTOR, RISK SCIENCES AND PUBLIC 
  POLICY INSTITUTE, JOHNS HOPKINS BLOOMBERG SCHOOL OF PUBLIC 
                             HEALTH

    Mr. Burke. Thank you, Mr. Chairman. Thank you, Mr. 
Chairman. It is a privilege to be here.
    Mr. Costa. Excuse me. The Johns Hopkins Bloomberg School of 
Public Health.
    Mr. Burke. Bloomberg, yes. The mayor.
    Mr. Costa. The mayor of New York may not like that 
omission. Thank you.
    Mr. Burke. OK.
    Mr. Costa. Please proceed.
    Mr. Burke. Thanks for having me here. I actually want to 
acknowledge my colleague, Dr. Mary Fox, originally invited 
can't be here. Her new baby daughter arrived a little bit 
early, but I am very glad to be here.
    I worked with her and actually became involved at the 
request of the Health Department in Anne Arundel County, who 
was really trying to grapple with this issue as a county health 
department and really challenged by that and came to us for 
help in assessing the public health risk.
    I am going to focus very quickly on the public health risks 
of these complex sites and have a couple of quick slides. First 
of all, as you heard, coal combustion wastes are a complex 
mixture of many, many compounds produced in enormous amounts. 
This combination of very high volume and lots of toxic 
substances presents a real public health challenge.
    The next slide shows the pathways of potential exposure for 
a typical buried site. I think we have focused on groundwater 
contamination, and the EPA risk assessment has looked at kind 
of pathway-by-pathway, substance-by-substance, but it presents 
a real challenge from airborne, from indoor, from soil 
exposure, as we have learned from our experience in Maryland.
    I think the long-term issue of contamination of an aquifer 
with this kind of complicated waste is a real challenge. Once 
you lose an aquifer it is forever.
    The next slide? In Anne Arundel County, as I mentioned, we 
were approached and the county health department, with very 
limited resources, was sampling drinking water wells of nearby 
residents complaining of things and found concentrations of 
aluminum, arsenic, beryllium, cadmium, lead, manganese and 
thallium above the drinking water standards. This really 
prompted things to move forward.
    In the next slide, and I am sorry for the small print, but 
I just wanted to present the tremendously complex mixture of 
well-recognized hazardous substances.
    Mr. Costa. What does that slide say?
    Mr. Burke. This slide is a list of perhaps the most well-
documented hazardous substances, things like arsenic, things 
like cadmium and lead and manganese and nickel and strontium 
and thallium, which are present and actually concentrated in 
the waste and which have been recognized to cause adverse 
health effects.
    The reason I present this slide is because you will see 
there are a number of things that affect the same organ 
systems, a number, for instance, of neurotoxicant materials. If 
we take them one at a time, we may be underestimating the risk, 
and that is my next slide. The current methods available to 
assess the risks are there, but with the current regulatory 
strategies it really takes one thing at a time and may vastly 
underestimate the risk.
    Let me finish with a couple of conclusions here. One, we 
know from experience and the vast volumes of waste that this 
waste is a complex mixture, and it can be mobilized in the 
environment. It depends very much on site characteristics. 
Location is everything. Site characteristics are everything.
    People are exposed and have been exposed through multiple 
means, including inhalation, direct contact, ingestion, and 
exposures may occur both indoors and out. The current 
approaches to evaluating risks are very limited, and they may 
underestimate the true risks.
    We experienced that firsthand working with Anne Arundel 
County trying to use drinking water standards to understand the 
impacts of the local wells that were contaminated from the 
sites. The health effects of exposure therefore might be 
underestimated unless we take into account the cumulative and 
additive effects of the multiple pathways, the multiple 
contaminants.
    The bottom line really is it should be all about prevention 
and site characterization, understanding the individual sites. 
As you heard, there are many different types of sites, many 
different conditions. This is essential to good public health 
that the prevention of exposure is really going to be through 
better management of the waste, better monitoring of the sites 
and better capacity at the local and state level, as well as 
strong Federal guidance to move forward because the cost of 
cleanup and the loss of the natural resources such as drinking 
water aquifers may really overwhelm the cost of disposal.
    Thank you.
    [The prepared statement of Ms. Fox follows:]

Statement submitted for the record by Mary A. Fox, PhD, MPH, Assistant 
       Professor, Johns Hopkins Bloomberg School of Public Health

Introduction
    I thank you for the opportunity to testify today concerning the 
health effects of exposure to coal combustion waste. I am Dr. Mary Fox, 
Assistant Professor in the Department of Health Policy and Management 
in the Johns Hopkins Bloomberg School of Public Health. I am a risk 
assessor with doctoral training in toxicology, epidemiology and 
environmental health policy. I am a core faculty member of the Hopkins 
Risk Sciences and Public Policy Institute where I teach the methods of 
quantitative risk assessment. In my research I evaluate the health 
risks of exposure to multiple chemical mixtures.
    My testimony focuses on the health effects associated with exposure 
to coal combustion waste and assessing the public health risks of such 
exposures.
Background
    According to a recent report from the National Research Council, 
coal combustion waste includes several waste streams produced at coal-
fired facilities, for example, bottom ash and boiler slag from the 
furnace, and fly ash and flue gas desulfurization material collected by 
pollution control devices (NRC 2006). The amount produced annually in 
the U.S. exceeds 120 million tons or enough to fill a million railroad 
coal cars (NRC 2006). Coal combustion waste has numerous inorganic 
constituents, many of which are associated with health effects in 
studies of animal or human exposures. Exposures to human populations 
may occur depending on methods of coal combustion waste disposal. A 
summary of health effects information for coal combustion waste 
constituents following studies of oral (ingestion) exposures is 
provided below.
    From a public health perspective it is interesting to note that the 
current concerns about coal combustion waste disposal are in part a 
result of regulatory success at protecting air quality. Two of the 
waste streams that contribute to the total production of coal 
combustion waste are from pollution control technologies in place to 
maintain clean air. Our efforts to minimize air emissions have resulted 
in a shifting of toxic constituents to another less well-regulated 
waste stream with potential to release the toxins into other 
environmental media.
Evaluating potential health risks from exposure to coal combustion 
        waste
Methods of coal combustion waste disposal and potential for human 
        exposure
    Several methods of coal combustion waste disposal were identified 
by the National Research Council committee including placement in lined 
or unlined landfills, placement in lined or unlined surface 
impoundments, use in engineered products such as cement, placement or 
use in coal mines (NRC 2006). If the coal combustion waste is in 
contact with surface water or groundwater, there is potential for the 
waste to be mobilized into the surrounding environment by leaching or 
runoff. During transport or placement (dumping) coal combustion waste 
may be entrained in air. Humans may come into contact or be exposed to 
coal combustion waste that has been mobilized into the environment from 
a disposal site. For example, if coal combustion waste leachate is in 
groundwater it may reach drinking water wells. Coal combustion waste 
entrained in air may be inhaled, may settle on soil or be transported 
into buildings through air transfer or on shoes or clothes.
    Management of coal combustion waste is a national issue that 
affects communities around the country where disposal sites are 
located. Not far from here in Anne Arundel County, Maryland, coal 
combustion waste has been disposed of in a sand and gravel pit. The 
county health department has sampled the drinking water wells of nearby 
residents finding concentrations of aluminum, arsenic, beryllium, 
cadmium, lead, manganese, and thallium at levels above primary and 
secondary drinking water standards in some wells (Phillips 2007). It 
appears that coal combustion waste buried in the former sand and gravel 
pit is leaching into groundwater.
Health effects information on constituents of coal combustion waste
    Health effects information is available for the majority of coal 
combustion waste constituents. See Table 1. The types and severity of 
the health effects range from benign and cosmetic effects to changes in 
organ or system function to cancer. Several coal combustion waste 
constituents share a common type of toxicity or target organ or system. 
Three coal combustion waste constituents have neurological effects 
(aluminum, lead, manganese); three (barium, cadmium, mercury) have 
effects on the kidney; three have a variety of effects on blood 
(cobalt, thallium, zinc); two have effects on the gastrointestinal 
system (beryllium and copper). If exposures to these mixtures occur, 
there is a greater chance of increased risk to health.
    The health effect information for coal combustion waste 
constituents in Table 1 was gathered from the Centers for Disease 
Control and Prevention (CDC), the Agency for Toxic Substances and 
Disease Registry (ATSDR) and the U.S. Environmental Protection Agency 
Integrated Risk Information System (IRIS). The health effects 
information listed comes from studies of exposure by ingestion. The 
listing of coal combustion waste constituents was developed from the 
National Research Council 2006 report ``Managing Coal Combustion 
Residues in Mines''.
Assessing risks to human health
    Environmental public health agencies such as the U.S. Environmental 
Protection Agency routinely use human health risk assessment to 
evaluate health impacts of exposure to contaminated environmental media 
such as air and drinking water. Human health risk assessment is a 
systematic process that combines available data on the contaminant of 
concern as described in the National Research Council report ``Risk 
Assessment in the Federal Government: Managing the Process'' (NRC 
1983). The four basic steps of a human health risk assessment are 
hazard identification, dose-response assessment, exposure assessment 
and risk characterization. Hazard identification summarizes information 
on the health effects related to exposure to the contaminant of 
concern. (As presented in Table 1, hazard information is known for the 
majority of coal combustion waste constituents.) Dose-response data are 
developed from research studies and describe the quantitative 
relationship between exposures and changes in rates of diseases, or 
other health effects such as organ function changes. Dose-response data 
are available for the majority of coal combustion waste constituents 
presented in Table 1. The magnitude, duration and amount of contact the 
individual or population of concern has with the contaminant of concern 
will be described in the exposure assessment. The nature of exposure to 
coal combustion waste will be highly variable depending on conditions 
at the site of disposal. The risk characterization combines the 
exposure and dose-response data to evaluate the likelihood of increased 
health risk.
    Human health risk assessment methods are available to evaluate 
multiple chemical exposures (EPA 2000). Coal combustion waste is a 
complex mixture of constituents. Risk assessment methods for multiple 
chemical exposures will be essential to evaluating health risks of 
exposure to coal combustion waste.
    Three of the four common coal combustion waste management practices 
(landfill, surface impoundment, use in or reclamation of mines) result 
in localized disposal. Communities surrounding such disposal sites are 
typically small. Proximity to the coal combustion waste disposal site 
will likely spur interest in evaluating community health. 
Unfortunately, systematic health effects research in any one small 
community will have limited statistical power to detect changes in 
health outcomes.
Reducing risks to human health
    Risks to human health are increased if people are exposed to coal 
combustion waste. The tremendous volume of this waste generated and 
disposed of each year in communities throughout the country represents 
an enormous public health challenge. People are exposed if coal 
combustion waste is dispersed into the broader environment by runoff, 
leaching or entrainment in air. Dispersal of coal combustion waste into 
the broader environment will be reduced or eliminated by disposal 
practices that contain the waste away from contact with ambient air, 
surface water and groundwater. Human health risks are reduced or 
eliminated if human exposure is reduced or eliminated.
Conclusions
    Coal combustion waste is a mixture of well-recognized substances. 
The approach to evaluating exposures to coal combustion waste should 
acknowledge potential interactions among the constituents in the body. 
Methods are available to assess health risks from exposure to mixtures 
of chemical substances, however, current regulatory strategies were not 
designed to control such mixture exposures. Coal combustion waste 
disposal practices must be improved to ensure population exposures are 
controlled through appropriate long-term containment and management.
    Main points:
      Large volumes of coal combustion waste are produced and 
disposed of in the U.S. every year.
      Coal combustion waste is a complex mixture that can 
become mobilized in the environment, depending on disposal methods 
used.
      People are exposed through multiple means including 
inhalation, direct contact, and ingestion. Exposures may occur indoors 
and outdoors.
      Current approaches to evaluating health risks are limited 
and may underestimate the true risks to exposed communities.
      Health effects of exposure will be underestimated unless 
the potential cumulative impacts of the multiple toxic components of 
the mixture are considered together.
      Prevention of exposure through better management of the 
waste is ultimately the most sound public health approach.
    Thank you very much for this opportunity to address the 
Subcommittee.
References
Agency for Toxic Substances and Disease Registry 2007. Minimum Risk 
        Levels. Available at: http://www.atsdr.cdc.gov/mrls/index.html 
        [accessed May 23, 2008].
Centers for Disease Control and Prevention 2005. Preventing Lead 
        Poisoning in Young Children. Atlanta: CDC.
Environmental Protection Agency 2000. Supplementary Guidance for 
        Conducting Health Risk Assessment of Chemical Mixtures. EPA/
        630/R-00/002. Risk Assessment Forum, Washington, DC.
Environmental Protection Agency 2008. Integrated Risk Information 
        System. Available at: http://cfpub.epa.gov/ncea/iris/index.cfm 
        [accessed May 23, 2008].
National Research Council Committee on the Institutional Means for 
        Assessment of Risks to Public Health. Risk Assessment in the 
        Federal Government: Managing the Process. Washington: National 
        Academy Press, 1983.
National Research Council Committee on Mine Placement of Coal 
        Combustion Wastes. Managing Coal Combustion Residues in Mines. 
        Washington: The National Academies Press, 2006.
Phillips, F. 2007. Impacts of Fly Ash on Groundwater in Anne Arundel 
        County, Maryland. Available at: www.mde.state.md.us/assets/
        document/watersupply/2007symposium/r0345Phillips_Frances.pdf 
        [accessed May 23, 2008].
        [GRAPHIC] [TIFF OMITTED] 42878.001
        


    Mr. Costa. Thank you very much, Dr. Burke. We obviously 
will get back to you under the question and answer period.
    Our next witness is Ms. Lisa Evans, project attorney for 
Earthjustice.

    STATEMENT OF LISA EVANS, PROJECT ATTORNEY, EARTHJUSTICE

    Ms. Evans. Thank you, Mr. Chairman. Thank you, Mr. 
Chairman.
    Mr. Costa. Do you have your mic activated?
    Ms. Evans. OK. Now I have the button on. Thank you again.
    As you noted, I am an attorney for Earthjustice. My area of 
expertise is hazardous waste law. I have worked previously as 
an assistant regional counsel for the Environmental Protection 
Agency. I greatly appreciate the opportunity to testify this 
morning.
    The answer to the question how should the Federal 
Government address the risks of coal combustion waste is 
straightforward. Simply stated, EPA must do what it committed 
to do in its final determination. As the Chairman noted, in 
2000 EPA concluded that enforceable Federal regulations are 
required to protect health and the environment. In 2000, the 
National Academies of Science studied the disposal of coal ash 
in mines and agreed.
    Yet some are clamoring now for EPA and OSM to back off. 
They say things have changed; that Federal regulations are not 
necessary. I agree. I agree with the proposition that things 
have changed, but the exact nature of these changes is at the 
heart of my testimony.
    Let us examine what has happened. First, the Clean Air Act 
has made coal combustion waste more dangerous. Chemicals that 
harmed human health for years as air pollutants such as 
mercury, arsenic, lead and thallium now reach us through 
drinking water from the leaching of coal ash.
    Second, the boom in U.S. coal burning is increasing the 
shear volume of coal combustion waste. Annual generation of 
waste is expected to top 170 million tons by 2015. The million 
car train mentioned by Dr. Burke will increase by 300,000 cars 
by 2015, and Secretary Wilson alluded to the dramatic increase 
that will occur in that state alone.
    Third, cases of water contamination are increasing. EPA 
recognizes more than double the number of contaminated sites 
since 2000. Explicitly, 67 cases in 23 states. Last, EPA 
acknowledges great risk to human health and the environment. In 
its recent risk assessment EPA found that the risk of cancer 
from unlined ponds is 900 times greater than its regulatory 
goals.
    In sum, rising toxicity, ballooning volume, increase in 
contaminated sites and new findings of significant risk reveal 
that both the threat of harm is increasing and our present 
system is failing.
    In the absence of national standards, widespread damage is 
occurring. New contaminated sites, not just leftovers, are 
uncovered with disturbing frequency. Three sites are just a 
short drive from this room. Consider the Gambrills fly ash 
site, which Mr. Harvey will talk about in detail.
    Also, Secretary Wilson alluded to the Faulkner Landfill in 
Charles County where coal ash is contaminating a wetland with 
selenium and cadmium at levels high enough to kill any animal 
life. Also consider the Battlefield Golf Course in Chesapeake, 
Virginia, where 1.5 million tons of ash were placed over a 
shallow aquifer.
    Looking further west, consider the Gibson power plant in 
Indiana where the plant supplies low-income neighbors with 
bottled water because their water contains boron in levels up 
to seven times the Superfund removal action level. Also in 
Indiana consider the town of Pines, now a Superfund site, with 
no potable well water because coal ash contaminated its aquifer 
with boron, molybdenum and arsenic.
    Finally, consider the lawsuits settled last month at the 
PPL power plant in Colstrip, Montana, where residents received 
$25 million after a leaking ash pond poisoned their water. 
These injuries are entirely avoidable. The bottom line is that 
the Federal agency charged with protection of our health and 
environment is not doing nearly enough to prevent irreparable 
harm.
    The solution again is straightforward. EPA must establish 
minimum safeguards similar to the Federal regulations governing 
municipal solid waste. For disposal of ash in mines, the 
National Academies had proposed a clear framework.
    The damages from disposal of coal ash may not personally 
affect many in this room. Low income communities and people of 
color shoulder a disproportionate share of the risks. The 
poverty rate of people living within one mile of coal ash sites 
is twice as high as the national average and the percentage of 
nonwhite population living within one mile is 30 percent 
higher. Similar high poverty rates are found in 118 of the 120 
coal producing counties where coal ash increasingly is being 
disposed.
    I respectfully ask the Subcommittee to consider the many 
communities whose water has been poisoned, air fouled and 
livelihoods threatened. The Office of Surface Mining is 
currently working on regulations to address the disposal in 
coal mines. If these regulations fail again to follow the clear 
recommendations of the National Academies and the lives and 
resources of coal-filled communities continue to be needlessly 
threatened, I hope that the Subcommittee will provide a 
legislative mandate to guarantee those safeguards.
    Times have changed, and the need is greater than ever to 
regulate coal combustion waste. I ask for your help in moving 
forward to end a crisis borne of Federal inaction.
    Thank you very much for your time and your interest on this 
important issue.
    [The prepared statement of Ms. Evans follows:]

        Statement of Lisa Evans, Project Attorney, Earthjustice

    Chairman Costa and Members of the Subcommittee, thank you for 
holding this hearing to consider the federal government's role in 
addressing the health and environmental risks of coal combustion waste. 
When mismanaged, coal combustion waste damages aquatic ecosystems, 
poisons drinking water and threatens the health of Americans 
nationwide. One of the dangers posed by coal combustion waste is 
disposal in coal mines, a practice that threatens the already heavily 
impacted communities and natural resources of our nation's coal mining 
regions.
    I am Lisa Evans, an attorney for Earthjustice, a national non-
profit, public interest law firm founded in 1971 as the Sierra Club 
Legal Defense Fund. Earthjustice represents, without charge, hundreds 
of public interest clients in order to reduce water and air pollution, 
prevent toxic contamination, safeguard public lands, and preserve 
endangered species. My area of expertise is hazardous and solid waste 
law. I have worked previously as an Assistant Regional Counsel for the 
Environmental Protection Agency enforcing federal hazardous waste law 
and providing oversight of state programs. I appreciate the opportunity 
to testify this morning.
    The question before this subcommittee, how the federal government 
should address the risks of coal combustion waste, has a 
straightforward answer. Simply stated, the U.S. Environmental 
Protection Agency (EPA) must do what it committed to do in its final 
Regulatory Determination on Wastes from the Combustion of Fossil Fuels, 
published 8 years ago. 1 In that determination, mandated by 
Congress in 1980, EPA concluded that federal standards for the disposal 
of coal combustion waste under the Resource Conservation and Recovery 
Act (RCRA) and/or the Surface Mining Control and Reclamation Act 
(SMCRA) are required to protect health and the environment. EPA's 
commitment to set minimum federal disposal standards extended to coal 
ash disposed in landfills, lagoons and mines. Yet eight years later, 
and 25 years after Congress required this determination, EPA's 
commitment remains an entirely empty promise.
---------------------------------------------------------------------------
    \1\ 65 Fed. Reg. 32214, May 22, 2000.
---------------------------------------------------------------------------
    The failure to fulfill this commitment is wholly unjustified, 
particularly in light of the substantial research that has already been 
completed by both EPA and the National Academies of Science (NAS). 
Preceding EPA's 2000 determination, EPA complied (albeit 16 years late) 
with a congressional mandate under RCRA to study the risks posed by 
coal combustion waste, solicit public comment, hold a public hearing, 
and publish a Report to Congress. 2 As a result, there is a 
robust record documenting the risks posed by coal ash and the damage 
that has occurred throughout the country as a result of its 
mismanagement. Further supplementing the record, EPA published in 
August 2007 a Notice of Data Availability that included additional 
documentation of the risks posed by coal combustion waste including a 
draft Human Health and Ecological Risk Assessment and a Coal Combustion 
Waste Damage Case Assessment. Lastly, EPA's Office of Research and 
Development has published a series of documents detailing the 
increasing toxicity of coal combustion waste, including 
Characterization of Mercury-Enriched Coal Combustion Residues from 
Electric Utilities Using Enhanced Sorbents for Mercury Control.
---------------------------------------------------------------------------
    \2\ U.S. EPA (1999). Report to Congress, Wastes from the combustion 
of fossil fuels. Volume 2--Methods, findings, and recommendations. 
Office of Solid Waste and Emergency Response, Washington, DC. EPA 530-
R-99-010. March 1999.
---------------------------------------------------------------------------
    Secondly, in 2004, Representative Nick Rahall introduced 
legislation requiring the NAS to study the impact of coal ash placement 
in mines and to recommend what federal action, if any, should be taken 
to control this burgeoning practice. In March 2006, the NAS published a 
report, Managing Coal Combustion Residues in Mines, that concluded 
unequivocally that enforceable federal standards be established to 
protect ecological and human health. The NAS recommended that EPA and 
the U.S. Office of Surface Mining (OSM) work together to promulgate 
federal standards under RCRA, SMCRA or a combination of both statutes.
    It is now two years since the publication of the NAS report, 8 
years after EPA's final regulatory determination, and 28 years since 
Congress first asked EPA to study the question. While the federal 
agencies have failed to act, the need to resolve this question has 
become increasingly urgent. When one considers the escalating number of 
sites polluted by coal combustion waste, the documented increase in the 
toxicity of coal ash, the increase in U.S. coal use, the accompanying 
increase in the volume of waste, and the trends in mismanagement, the 
path is clear. Flying blind without federal rules that ensure safe 
disposal of the largest industrial waste in the country is nothing if 
not foolish, dangerous, and contrary to statutory mandates and clear 
Congressional intent.
    EPA and OSM are fiddling while ash from burning coal poisons our 
water and sickens our communities. Inadequate state laws offer scant 
protection. Federal environmental statutes dictate that EPA and OSM 
must do what they promised to do and what they have been directed to 
do--promulgate enforceable minimum federal standards to protect health 
and the environment nationwide from the risks posed by mismanagement of 
coal combustion waste.
The Nature of the Threat from Coal Combustion Waste
1.  The Volume of Waste is Immense
    Burning coal produces over 129 million tons each year of coal 
combustion waste in the U.S. This is the equivalent of a train of 
boxcars stretching from Washington, D.C. to Melbourne, Australia. 
3 Coal combustion waste (CCW) is largely made up of ash and 
other unburned materials that remain after coal is burned in a power 
plant to generate electricity. These industrial wastes include the 
particles captured by pollution control devices installed to prevent 
air emissions of particulate matter (soot) and other gaseous pollutants 
from the smokestack. In addition to burning coal, some power plants mix 
coal with other fuels and wastes, including a wide range of toxic or 
otherwise hazardous chemicals, such as the residue from shredded cars 
(a potential source of PCBs), oil combustion waste (often high in 
vanadium), railroad ties, plastics, tire-derived fuel and other 
materials. 4
---------------------------------------------------------------------------
    \3\ U.S. Department of Energy (2004). Coal Combustion Waste 
Management at Landfill and Surface Impoundments 1994-2004. DOE/PI-004, 
ANL-EVS/06-4 at page 3.
    \4\ U.S. EPA (1999). Report to Congress, Wastes from the combustion 
of fossil fuels. Volume 2--Methods, findings, and recommendations. 
Office of Solid Waste and Emergency Response, Washington, DC. EPA 530-
R-99-010. March 1999.
---------------------------------------------------------------------------
    As demand for electricity increases and regulations to reduce air 
emissions from power plants are enforced, the amount of CCW is expected 
to increase. By 2015, the quantity of CCW generated per year is 
estimated to exceed 170 million tons. (See Figure 1) In addition, the 
Energy Information Administration (EIA)'s 2007 Annual Energy Outlook 
indicates that electricity production from coal is projected to 
increase almost 25 percent by 2020 and 64% by 2030. 5 
Production of CCW will increase proportionally.
---------------------------------------------------------------------------
    \5\ Annual Energy Outlook, 2007 with Projections to 2030 (Early 
Release)- Overview. Report No. DOE/EIA-0383/2007, December 2006.
---------------------------------------------------------------------------
    CCW is significantly different from coal itself. As coal is burned, 
its volume is reduced by two thirds to four fifths, concentrating 
metals and other minerals that remain in the ash. Elements such as 
chlorine, zinc, copper, arsenic, selenium, mercury, and numerous other 
dangerously toxic contaminants are found in much higher concentrations 
on a per volume basis in the ash compared to the coal. These wastes are 
poisonous and can cause cancer or damage the nervous systems and other 
organs, especially in children. The thousands of tons of chemicals 
disposed of in CCW each year dwarf other industrial waste streams. (See 
Figure 2) Table 1 below indicates some of the contaminants commonly 
found in CCW and their human health effects.
[GRAPHIC] [TIFF OMITTED] 42878.002

.eps2.  Better Air Pollution Controls Make CCW More Toxic
    CCW is becoming increasingly toxic. As air pollution control 
regulations are implemented under the Clean Air Act, more particulates 
and metals are captured in the ash instead of being emitted from the 
smokestack. In a 2006 report on CCW, EPA found that when activated 
carbon injection was added to a coal-fired boiler to capture mercury, 
the resulting waste leached selenium and arsenic at levels sufficient 
to classify the waste as ``hazardous'' under RCRA. 6 
Specifically, EPA found that arsenic leached (dissolved) from the CCW 
at levels as high as 100 times its maximum contaminant level (MCL) for 
drinking water, and selenium leached at levels up to 200 times its MCL. 
7
---------------------------------------------------------------------------
    \6\ U.S. EPA (2006). Characterization of Mercury-Enriched Coal 
Combustion Residues from Electric Utilities Using Enhanced Sorbents for 
Mercury Control. EPA/600/R-06/008. (January).
    \7\ Ibid.
---------------------------------------------------------------------------
    In a follow-up study that is currently underway by EPA's Office of 
Research and Development, EPA tested the leaching characteristics of 
CCW from a power plant employing both mercury controls and a wet 
scrubber for sulfur dioxide control. EPA found that CCW from a plant 
with a wet scrubber leached numerous additional toxic metals at levels 
significantly higher than their MCLs. 8 EPA found that the 
CCW leached arsenic, thallium, boron, and barium above RCRA's hazardous 
waste threshold (100 times the MCL). The CCW also leached levels of 
antimony, cadmium, chromium, lead, mercury, molybdenum and selenium in 
quantities sufficient to contaminate drinking water and harm aquatic 
life.
---------------------------------------------------------------------------
    \8\ U.S. EPA, Office of Research and Development. ``Evaluating the 
Fate of Metals from Management of Coal Combustion Residues from 
Implementation of Multi-pollutant Controls at Coal-fired Electric 
Utilities,'' Presentation for 32nd Annual EPA-A&WMA Information 
Exchange. December 4, 2007.
---------------------------------------------------------------------------
    EPA's own analyses of how CCW behaves in unlined disposal sites 
predict that some metals will migrate and contaminate nearby 
groundwater to conditions extremely dangerous to people. In 2007, EPA 
published a draft Human Health and Ecological Risk Assessment that 
found extremely high risks to human health from the disposal of coal 
ash in waste ponds and landfills. According to EPA, the excess cancer 
risk for children drinking groundwater contaminated with arsenic from 
CCW disposal in unlined ash ponds is estimated to be as high as nine in 
a thousand--900 times higher than EPA's own goal of reducing cancer 
risks to less than one-in-one hundred thousand individuals. Figure 3 
compares EPA's findings on the cancer risk from arsenic in coal ash 
disposed in waste ponds to several other cancer risks, along with the 
highest level of cancer risk that EPA finds acceptable under current 
regulatory goals.
    Clearly, as new technologies are mandated to filter air pollutants 
from power plants, cleaning the air we breathe of smog, soot and other 
harmful pollution, the quantity of dangerous chemicals in the ash 
increases. Without adequate safeguards, the chemicals that have harmed 
human health for years as air pollutants- mercury, arsenic, lead and 
thallium- will now reach us through drinking water supplies. Given the 
documented tendency of CCW to leach metals at highly toxic levels, 
there is clearly the need for scrutiny of current disposal practices.
3.  CCW Causes Documented Damage to Human Health and the Environment
    The absence of national disposal standards has resulted in 
environmental damage at disposal sites throughout the country. In fact, 
scientists have documented such damage for decades. Impacts include the 
leaching of toxic substances into soil, drinking water, lakes and 
streams; damage to plant and animal communities; and accumulation of 
toxins in the food chain. 9, 10 According to 
EPA's latest Damage Case Assessment for Coal Combustion Waste published 
in 2007, EPA recognizes 67 contaminated sites in 23 states where CCW 
has polluted groundwater or surface water. EPA admits that this is just 
the tip of the iceberg, because most CCW disposal sites in the U.S. are 
not adequately monitored.
---------------------------------------------------------------------------
    \9\ Adriano, D.C., Page, A.L., Elseewi, A.A., Chang, A.C., 
Straughan, I.R. (1980).Utilization and disposal of fly ash and other 
coal residues in terrestrial ecosystems. Journal of Environmental 
Quality, 9: 333.
    \10\ Carlson, C.L., Adriano, D.C. (1993). Environmental impacts of 
coal combustion residues. Journal of Environmental Quality, 22: 227-
247.
---------------------------------------------------------------------------
    Low-income communities and people of color shoulder a 
disproportionate share of the health risks from these wastes. The 
poverty rate of people living within one mile of coal combustion waste 
disposal sites is twice as high as the national average, and the 
percentage of non-white populations within one mile is 30 percent 
higher than the national average. Similarly high poverty rates are 
found in 118 of the 120 coal-producing counties, where CCW increasingly 
are being disposed of in unlined, under-regulated mines, often directly 
into groundwater.
    Documented damage from CCW includes:
      Public and private drinking water contaminated by CCW in 
at least 8 states, including Wisconsin, Illinois, Indiana, New Mexico, 
Pennsylvania, North Dakota, Georgia and Maryland. 11
---------------------------------------------------------------------------
    \11\ Cherry, D.S. (1999). A review of the adverse environmental 
impacts of coal combustion wastes. Prepared for the Hoosier 
Environmental Council, November 10, 1999.
---------------------------------------------------------------------------
      Hundreds of cattle and sheep killed and many families 
sickened in northern New Mexico by ingesting water poisoned by CCW. 
12
---------------------------------------------------------------------------
    \12\ Taugher, Mike. Water Worries & Shumway Arroyo Was At Center of 
1980s Lawsuits, Albuquerque Journal, A1 & A10, October 24, 1999.
---------------------------------------------------------------------------
      Fish consumption advisories issued in Texas and North 
Carolina for water bodies contaminated with selenium from CCW disposal 
sites and entire fish populations destroyed. 13, 
14
---------------------------------------------------------------------------
    \13\ Skorupa, Joseph, P. (1998). Selenium poisoning of fish and 
wildlife in nature: Lessons from twelve real-world examples, from 
Environmental Chemistry of Selenium. Marcel Dekker, Inc. New York.
    \14\ Cherry, D.S. (1999). A review of the adverse environmental 
impacts of coal combustion wastes. Prepared for the Hoosier 
Environmental Council, November 10, 1999
---------------------------------------------------------------------------
      Documented developmental, physiological, metabolic, and 
behavioral abnormalities and infertility in nearly 25 species of 
amphibians and reptiles inhabiting wetlands contaminated by CCW in 
South Carolina. 15
---------------------------------------------------------------------------
    \15\ Hopkins, W.A., C.L. Rowe, J.H. Roe, D.E.Scott, M.T. Mendon'a 
and J.D. Congdon, (1999). Ecotoxicological impact of coal combustion 
byproducts on amphibians and reptiles. Savannah River Ecology 
Laboratory, presented at the Society for Environmental Toxicology and 
Chemistry, 20th Annual meeting, Philadelphia, PA, November 14-18. 
Abstract # PMP009.
---------------------------------------------------------------------------
    Unfortunately, new CCW-contaminated sites are being uncovered with 
disturbing frequency. One need only pick up the Washington Post, 
Baltimore Sun or Virginian-Pilot over the last few months to grasp the 
national crisis. Evidence of poisoned water has recently surfaced in 
Baltimore, Charles County, Virginia Beach, and across the country in 
Illinois, Indiana, and Montana.
    The following sites are illustrative:
      Gambrills Fly Ash Site, Anne Arundel County, Maryland 
where 3.8 million tons of ash were dumped in unlined gravel pits 
contaminating drinking water wells with arsenic, lead, cadmium, nickel, 
radium and thallium as high as 4 times the drinking water standard.
      Faulkner Landfill, Charles County, Maryland where 
leaching coal ash is contaminating a wetland with selenium and cadmium 
at levels high enough to kill any animal life, The Smithsonian 
Institution has called the affected wetlands, Zekiah Swamp, one of the 
most ecologically important areas on the East Coast.
      Battlefield Golf Course, Chesapeake, Virginia where 
developers used 1.5 million tons of fly ash to build a golf course over 
a shallow aquifer. Although the course was just completed this winter, 
wells are already starting to show elevated boron. Investigation into 
the cause of the pollution has just begun. Residential drinking water 
wells are in close vicinity to the unlined, uncapped site.
      PPL Montana Power Plant, Colstrip, Montana, the second 
largest coal-fired power plant west of the Mississippi, where leaking 
unlined coal ash ponds contaminated residential wells with high levels 
of metals, boron and sulfate. Five companies agreed in May 2008 to pay 
$25 million to settle a groundwater contamination lawsuit brought by 
residents.
      Gibson Generating Station, Gibson County, Indiana where 
enormous ash ponds are exposing threatened species to dangerous levels 
of selenium and where the power company supplies residents with bottled 
water because their wells are contaminated with boron.
    These injuries to human lives and the environment are entirely 
avoidable. Yet damage will continue to occur at site after site in the 
absence of minimum federal standards. As you read this testimony, 
approximately 1000 tons of ash is disposed daily into a New Mexico 
mine, although the mine continues to leach toxic levels of sulfate into 
scarce New Mexico waters. Constellation Energy, the company that 
poisoned the water in Gambrills, Maryland and paid a million dollar 
fine for that offense, is today seeking to dump its ash into another 
unlined Maryland quarry because there are no state laws prohibiting the 
dumping. And currently there is a permit pending in Pennsylvania that 
seeks to create the largest unlined coal ash dump in the U.S. in a 
surface coal mine without any requirements for sufficient monitoring, 
waste or site characterization, cleanup standards, or bonds for 
cleanup. The damage that will result from these acts is not inevitable. 
It is within this subcommittee's power to require federal agencies to 
do their job to protect health and the environment from this toxic 
waste.
4.  CCW is Disposed in Coal Mines without Safeguards
    Each year, approximately 25 million tons of CCW, nearly 20% of 
total CCW generation, are placed in active and abandoned coal mines 
without basic safeguards to protect health and water resources. Under 
pressure from electric utilities, many states have wrongly defined the 
dumping of CCW in coal mines as a ``beneficial use'' and exempted the 
practice from all solid waste regulations. 16 Consequently, 
enormous quantities of CCW are being dumped directly into groundwater 
without any monitoring or clean up requirements.
---------------------------------------------------------------------------
    \16\ U.S. EPA (2002). Mine Placement of Coal Combustion Waste, 
State Program Elements, Final Draft, December 2002.
---------------------------------------------------------------------------
    The laissez faire regulatory approach of many states to CCW 
minefilling maximizes the risk of contamination. Mining breaks up solid 
rock layers into small pieces, called spoil. Compared to the flow 
through undisturbed rock, water easily and quickly infiltrates spoil 
that has been dumped back into the mined out pits. Fractures from 
blasting and excavation become underground channels that allow 
groundwater to flow rapidly offsite. Because mines usually excavate 
aquifers (underground sources of water), the spoil fills up with 
groundwater. Unlike engineered landfills, which are lined with 
impervious membranes (clay or synthetic) and above water tables by law, 
ash dumped into mine pits continually leaches its toxic metals and 
other contaminants into the water that flows through and eventually 
leaves the mine.
    In fact, serious contamination has been documented at numerous mine 
sites across the country where CCW has been disposed. In a multi-year 
study of 15 coal ash minefills in Pennsylvania, researchers found that 
CCW made the water quality worse at 10 of the 15 mines. 17 
At five of the sites, there was not enough monitoring data to determine 
whether adverse impacts were caused by the CCW. A review of the permits 
revealed that:
---------------------------------------------------------------------------
    \17\ Clean Air Task Force, Impacts of Waster Quality from Placement 
of Coal Combustion Waste in Pennsylvania Coal Mines, September 2007. 
Pages 26-38.www.catf.us
---------------------------------------------------------------------------
      Levels of contaminants, including manganese, aluminum, 
arsenic, lead, selenium, cadmium, chromium, nickel, sulfate and 
chloride, increased in groundwater and/or surface water after CCW was 
disposed in the mines.
      Contaminants increased from background concentrations 
(measured after mining) to levels hundreds to thousands of times 
federal drinking water standards.
      Pollution was found downstream from CCW disposal areas 
and sometimes well outside the boundary of the mines.
    Even though the placement of coal ash in coal mines is often touted 
as a ``beneficial use'' for the purpose of treating acid mine drainage, 
the facts show that minefilling is not an effective solution. While the 
CCW remediated acid mine drainage temporarily in a few of the mines 
studied, in two thirds of the mines, the introduction of CCW resulted 
in more severe, long-term contamination than had existed at these sites 
from the mining operation itself. Furthermore, the stakes are high if 
contamination occurs. As a practical matter, dumping large quantities 
of CCW directly into water tables at highly fractured sites under 
massive quantities of mine overburden makes the prospect of cleaning up 
contamination far more daunting than halting leakages from conventional 
landfills and ash ponds.
5.  States Fail to Provide Adequate Regulation of CCW Disposal
    With no minimum federal standards, the states have been free to 
regulate as they please, or more often, abstain from effective 
regulation altogether. If one compares how EPA regulates the disposal 
of ordinary household trash with its hands-off approach to CCW, the 
results defy logic. While newspapers, soda cans and banana peels under 
no circumstances qualify as RCRA hazardous waste, EPA has established 
detailed federal disposal standards for the landfills that contain 
them. 18 Household trash cannot be dumped in a mine without 
violating federal law, but in most states battleship quantities of 
metal-laden ash can be dumped with relative impunity. EPA has 
regulations governing all aspects of the disposal of household trash in 
landfills including performance standards, siting restrictions, 
monitoring, closure requirements, bonding, and post-closure care. 
19 These regulations, promulgated under subtitle D of RCRA, 
are enforceable by states and citizens against any owner or operator of 
a landfill in violation of the standards. Furthermore, RCRA requires 
that state solid waste programs promulgate equivalent (or more 
stringent) regulations in order to maintain authorization. 
20 Yet EPA has no such regulations for the disposal of toxic 
ash that exceeds hazardous waste levels for toxic metals. The result is 
an inconsistent patchwork of largely inadequate state regulation.
---------------------------------------------------------------------------
    \18\ See 40 C.F.R. Part 258.
    \19\ Ibid.
    \20\ 42 U.S.C. Sec. 6947.
---------------------------------------------------------------------------
    The utility industry, as well as some states, claim that the states 
are doing a good job of regulating coal ash despite the absence of 
federal standards. The fact that EPA admits at least 67 sites in 23 
states have been contaminated by CCW indicates that the opposite is 
true. A survey of state laws governing CCW disposal in landfills and 
surface impoundments shows that state regulations fall short of 
requiring measures that would adequately protect human health and the 
environment. Earthjustice, along with several other environmental 
organizations, submitted analyses of the laws and regulations of 20 
states in response to EPA's Notice of Data Availability in February 
2008. Our state survey is too voluminous to repeat in this testimony, 
but the analyses show definitively that state solid waste programs do 
not provide consistent and adequate safeguards sufficient to protect 
human health and the environment from CCW. Most states failed to 
require the basic safeguards essential for waste management, including 
liners, leachate collection systems, groundwater monitoring, corrective 
action (cleanup), closure and post-closure care.
    In fact, the gaps are shocking. Among the top 15 CCW generating 
states, which represent 74% of U.S. CCW generation, only one state 
requires all CCW lagoons (surface impoundments) to be lined and only 
one state requires all CCW lagoons to monitor groundwater for migrating 
pollutants. Only three states out of 15 require CCW landfills to be 
lined. It is not surprising, therefore, that EPA reported in 2000 that 
only 57 percent of CCW landfills and only 26% of CCW surface 
impoundments were lined and that only 65% of landfills and 38% of 
surface impoundments conducted groundwater monitoring. 21
---------------------------------------------------------------------------
    \21\ US EPA. Regulatory Determination on Wastes from the Combustion 
of Fossil Fuels, 65 Fed. Reg. 32214 at 32216, May 22, 2000.
---------------------------------------------------------------------------
    In addition, in 2005, a report prepared for EPA's Office of Solid 
Waste, entitled Estimation of Costs for Regulating Fossil Fuel 
Combustion Ash Management at Large Electric Utilities Under Part 258, 
included a survey on state disposal regulations that verified that 
states fail to prohibit the most dangerous CCW disposal practices. The 
report examined the top 25 coal-consuming states to determine how much 
CCW is prohibited from disposal below the natural water table. Since 
isolation of ash from water is critical to preventing toxic leachate, 
it is axiomatic that disposal of ash must occur above the water table. 
Yet the report found that only 16% of the total waste volume being 
regulated by these 25 states is prohibited from disposal in water when 
waste is disposed in surface impoundments. For landfills, the total 
waste volume that is prohibited from disposal in water is only 25%. 
Thus the great majority of total CCW produced in those states is 
allowed to be disposed into the water table, namely 84% of the total 
volume of CCW disposed in surface impoundments and 75% of the total 
volume disposed in landfills. 22
---------------------------------------------------------------------------
    \22\ DPRA Incorporated. Estimation of Costs for Regulating Fossil 
Fuel Combustion Ash Management at Large Electric Utilities under Part 
258, prepared for U.S. EPA, Office of Solid Waste, November 30, 2005 at 
page 39.
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    In view of EPA's risk assessment that finds the cancer risk from 
ash ponds 900-times EPA's regulatory goals, the absence of basic 
monitoring, lining and isolation requirements at the nation's roughly 
300 CCW surface impoundments is alarming. Failure to impose 
requirements at waste lagoons is particularly dangerous, because CCW 
disposed in surface impoundments is intentionally mixed with water to 
create a sludge. The presence of water facilitates the dissolution and 
migration of pollutants, particularly when the ash pond is unlined or 
lined with only soil or clay. As the above statistics reveal, lining 
and monitoring does occur at some CCW disposal units, but far too much 
is left to the discretion of state regulators and the whim of 
individual utilities.
    A 2005 report published jointly by EPA and the U.S. Department of 
Energy (DOE), entitled ``Coal Combustion Waste Management at Landfills 
and Surface Impoundments, 1994-2004, attempted to show that certain 
industry practices have improved since EPA's regulatory determination. 
The report was based primarily on data voluntarily submitted by the 
utility industry. The report surveyed 56 permitted landfills and 
surface impoundments built between 1994 and 2004. The report cited the 
presence of ``liners'' at all newly permitted surface impoundments and 
landfills and concluded ``[t]he use of liners has become essentially 
ubiquitous.'' This conclusion, however, is grossly misleading, because 
the devil is in the details. While more liners appear to be installed 
on disposal units built in the last decade, the type of liners is 
insufficient to protect health and the environment.
    In fact, the DOE/EPA Report reveals that only 39% of the units, at 
best, installed composite liners. According to EPA's 2007 draft Human 
and Ecological Risk Assessment, landfills and surface impoundments with 
clay liners do not provide adequate protection of health and the 
environment. EPA's Risk Assessment states:
        Risks from clay-lined units are lower than those from unlined 
        units, but 90th percentile risks are still well above the risk 
        criteria for arsenic and thallium for landfills and arsenic, 
        boron and molybdenum for surface impoundments. 23
---------------------------------------------------------------------------
    \23\ US EPA, Hunan and Ecological Risk Assessment at ES-7.
---------------------------------------------------------------------------
The Risk Assessment further states that composite liners effectively 
reduce risks from all constituents to below the risk criteria for both 
landfills and surface impoundments. A composite liner is defined as a 
high-density polyethylene (HDPE) membrane combined with either 
geosynthetic or natural clays. Yet the DOE/EPA Report reveals that clay 
liners were used at 25% of the permitted units. Single liners, also 
deemed inadequate, were used at 18% of the surveyed units. Thus it is 
clear that the majority of new units do not have adequate liners. 
Unless the liner is of a sufficient quality to prevent the migration of 
contaminants, its use is largely irrelevant. The DOE/EPA Report's 
updated survey of state-permitted disposal units does not show that 
adequate protections are in place. Conversely, it reveals that the 
absence of a federal rule requiring composite liners has produced a 
whole new generation of waste units in at least a dozen states that 
pose serious threats to human health and the environment.
    Furthermore, the 2005 DOE/EPA Report documents that nearly a third 
of the net disposable CCW generated in the U.S. are potentially totally 
exempt from solid waste permitting requirements. 24 The DOE/
EPA Report explains this fact in great detail:
---------------------------------------------------------------------------
    \24\ U.S. Department of Energy (2004). Coal Combustion Waste 
Management at Landfill and Surface Impoundments 1994-2004. DOE/PI-004, 
ANL-EVS/06-4 at page 45.
---------------------------------------------------------------------------
        [t]he six States that have solid waste permitting exemptions 
        for certain on-site CCW landfills generated a total of 
        approximately 17 million tons of net disposable CCWs in 2004, 
        which is 20% of the total net disposable CCWs generated for all 
        States. The one State that excludes CCW from all solid waste 
        regulations, Alabama, generated a total of approximately 2.7 
        million tons of net disposable CCWs in 2004, which is about 
        3.3% of the total net disposable CCWs generated in all States. 
        Ohio, which excludes ``nontoxic'' fly ash, bottom ash, and 
        boiler slag from solid waste regulations, generated a total of 
        5.9 million tons of these wastes and 1.1 million tons of FGD 
        wastes (about 7 million tons total) in 2004. Of these amounts, 
        about 1.3 million tons of ``nontoxic'' fly ash, bottom ash, and 
        boiler slag are beneficially used and about 1 million tons of 
        FGD sludge are beneficially used. Hence, the net disposable 
        CCWs that were potentially exempt from solid waste permitting 
        requirements in Ohio in 2004 ``. amount to about 4.6 million 
        tons. ``. Thus the amount of net disposable CCWs in Ohio that 
        is potentially exempt from solid waste permitting requirements 
        represents about 5.4% of the total net disposable CCWs 
        generated for all States. Overall, the portion of the net 
        disposable CCWs that is potentially exempt from solid waste 
        permitting requirements is approximately 24 million tons, which 
        corresponds to 29% of the total net disposable CCWs generated 
        in the United States during 2004. 25 (Emphasis 
        added).
---------------------------------------------------------------------------
    \25\ Ibid.
---------------------------------------------------------------------------
    The report also explains that this exempted CCW represents almost a 
third of the U.S. coal-fired generating capacity:
        In terms of electric generating capacity, the six States that 
        have solid waste permitting exemptions for certain on-site CCW 
        landfills generated a total of approximately 66,000 MW, which 
        is approximately 20% of the total coal-fired electric 
        generating capacity in the United States in 2004. The one State 
        the excluded CCWs from all solid waste regulations, Alabama, 
        generated a total of approximately 12,000 MW in 2004, which is 
        about 3.7% of the total. Ohio which excludes ``nontoxic'' fly 
        ash, bottom ash and boiler slag from solid waste regulations, 
        generated a total of about 24,000 MW in 2004. This represents 
        about 7.2% of the total coal-fired electric generating capacity 
        in the United States. Overall, the portion of the coal-fired 
        electric generating capacity in the States that potentially 
        exempt CCW landfills from solid waste permitting requirements 
        and that exclude certain CCWs from all solid waste regulation 
        is approximately 102,000 MW, which corresponds to about 30% of 
        the total coal-fired electric generating capacity in the United 
        States in 2004. 26 (Emphasis added.)
---------------------------------------------------------------------------
    \26\ Ibid. at 45-46.
---------------------------------------------------------------------------
Thus the DOE/EPA Report demonstrates that a significant portion of the 
CCW generated in the U.S. is potentially not subject to any solid waste 
permitting. This is another wholly unacceptable gap in regulation of 
CCW that is likely to have significant negative impact on health and 
the environment.
6.  Voluntary Industry Agreements are not a Solution
    It is not viable to allow the utility industry to police itself. 
The proliferation of contaminated sites over the last 8 years 
demonstrates that industry is not voluntarily ensuring safe disposal. A 
voluntary agreement recently signed by some utilities and presented to 
EPA as a substitute for enforceable regulations is unacceptable. 
27 Its shortcomings are too numerous to describe here in 
detail, but suffice it to say that the utilities are proposing 
substantially less protection for their toxic ash than is required by 
law for the garbage from their cafeterias.
---------------------------------------------------------------------------
    \27\ Utility Solid Waste Activities Group. Utility Industry Action 
Plan for the Management of Coal Combustion Products.
---------------------------------------------------------------------------
    The voluntary industry agreement is designed to allow the electric 
utility industry to continue avoiding the cost of safe disposal of its 
voluminous waste. The plan intentionally fails to require monitoring 
that would detect pollution escaping CCW surface impoundments and 
landfills or to require any specific response should pollution be 
detected. The plan fails to require the most basic of safeguards, 
composite liners, and it fails to prohibit the placement of CCW 
directly into groundwater, and nothing in the plan applies to disposal 
of CCW in mines. In view of continuing damage from coal ash, the 
hundreds of disposal units operated by industry today without 
safeguards, and the clear direction provided by Congress, the Clinton 
EPA and the National Academies of Science, it is untenable for any 
federal agency to entertain an unenforceable, voluntary proposal.
7.  EPA Fails to Fulfill the Statutory Mandates of RCRA
    The goal of RCRA is to ensure the safe disposal of solid and 
hazardous waste and to encourage the safe reuse of waste in order to 
protect human health and the environment and conserve the nation's 
natural resources. 28 By failing to make good on its promise 
to promulgate minimum federal standards, EPA has failed in both 
respects. The disposal of CCW without safeguards has resulted in the 
creation of ``open dumps,'' as they are defined in 40 C.F.R. Part 257, 
which is specifically prohibited by the statute. 29 
Furthermore, because disposal of CCW in unlined, unmonitored pits so 
frequently presents the threat of an imminent and substantial 
endangerment to health or the environment, these disposal units violate 
RCRA's core statutory mandate that disposal of solid waste avoid the 
potential for substantial damage, as set forth in section 7003 of RCRA. 
30 Furthermore, Section 1008 of RCRA requires EPA to 
``develop and publish suggested guidelines'' for solid waste management 
under subtitle D, as necessary to ensure protection of public health 
and the environment. Thus EPA has failed with regard to CCW, not only 
to abide by its own regulatory determination, but also to comply with 
the mandates of RCRA.
---------------------------------------------------------------------------
    \28\ 42 U.S.C. Sec. 6902.
    \29\ 42 U.S.C. Sec. 6945(a).
    \30\ 42 U.S.C. Sec. 6973.
---------------------------------------------------------------------------
    Further, by failing to impose disposal standards, EPA fails to 
encourage CCW reuse. When cheap dumping is no longer available, power 
plants will have far greater incentive to recycle their ash. Reuse of 
ash as a component of asphalt, concrete, and gypsum board are 
legitimate and safe reuses that should be encouraged. In addition, 
recycling ash in concrete can result in a large reduction of greenhouse 
gases. Approximately one ton of CO2 is released for every 
ton of Portland cement produced, but certain fly ashes can replace up 
to 50% by mass of Portland cement. 31 Further, since cement 
kilns are one of the largest emitters of mercury in the nation, the 
reduction of Portland cement production will reduce mercury emissions.
---------------------------------------------------------------------------
    \31\ http://www.us-concrete.com/news/features.asp (last checked 
June 1, 2008) In Wisconsin, for example, adequate regulation of CCW has 
raised recycling rates significantly. Wisconsin CCW regulations are 
probably the most comprehensive in the nation. As a result, the 
recycling rate in Wisconsin for CCW is 85%, more than double the 
average recycling rate for all other CCW-producing states (36%). 
1 It stands to reason that if the true cost of disposal were 
borne by electric utilities, there would be far greater incentive to 
find beneficial uses for the ash.
---------------------------------------------------------------------------
The Federal Solution
    The solution is straightforward. EPA, or in the case of CCW 
disposal in mines, OSM, in conjunction with EPA, must provide minimum 
enforceable safeguards for the disposal of CCW in mines, landfills and 
waste lagoons. This is not a novel concept. These regulations can be 
similar to the regulations governing municipal solid waste landfills. 
For coal ash landfills, it is a simple matter to require the basics: 
placement above the water table, composite liners, groundwater 
monitoring, daily cover of the waste, cleanup standards if 
contamination is discovered, construction of a cap upon closure, 
financial assurance, and post-closure care. In fact, a coalition of 
environmental groups, including Earthjustice, submitted draft 
regulations to EPA almost 18 months ago. EPA never responded.
    For disposal of coal ash in mines, the National Academies of 
Science established a clear framework for federal regulations in their 
2006 report, recommending waste and site characterization, isolation 
from groundwater, effective monitoring, site specific management plans, 
adequate bonding, public participation in permitting, and site specific 
cleanup standards. Again, these basic safeguards are the familiar 
foundation of federal waste disposal law.
Recommendations
    Many complicated environmental issues have been brought before this 
committee, but the instant question is not one of them. Clear solutions 
exist and have already been identified. Research and analysis conducted 
by EPA, the Science Advisory Board, and the National Academies of 
Science indicate a high and unacceptable risk from CCW when the waste 
is disposed without safeguards. The threat is not theoretical. Case 
after case of serious injury to health and the environment has resulted 
from unsafe disposal of CCW.
    It is thus our hope that the Subcommittee will recommend that EPA 
and OSM take the following steps to protect our communities and 
environment from the risks posed by CCW.
1.  A timetable is needed for establishing federal regulations.
    For landfills and surface impoundments, EPA must immediately begin 
to formulate the basic minimum waste management requirements that will 
be required at all surface impoundments and landfills.
    For standards applicable to mines, EPA should work closely with 
OSM. As necessary, RCRA authority must extend to waste disposal in 
mines, if it is found that SMCRA authority is not sufficient. Use of 
EPA's extensive expertise in waste management is essential to the 
development of effective and comprehensive waste disposal rules for 
mines, whether the regulations are promulgated under RCRA or SMCRA. 
EPA's decision to defer entirely to OSM and its consequent failure to 
work closely with OSM to ensure the quality of minefilling regulations 
is totally unacceptable.
    In view of EPA's longstanding failure to abide by its 2000 
commitment to promulgate regulations and the harm that is currently 
occurring because of EPA's failure to act, it is necessary to ensure 
that the agency is indeed moving forward to establish federal 
standards. Further action by this Subcommittee to conduct additional 
hearings and support legislation to set a deadline for federal action 
would be extremely helpful.
2.  EPA and OSM must promulgate federal regulations, not guidance.
    We ask the Subcommittee to ensure that EPA and OSM establish 
regulations, not guidance, governing CCW disposal. Promulgation of 
federal regulations is absolutely essential, because many states cannot 
enact CCW disposal safeguards in the absence of federal standards. Some 
23 states have ``no more stringent'' provisions in their statutes that 
prohibit the states from enacting stricter standards than are found in 
federal law. Thus for those states, without federal regulation, there 
can be no regulation of CCW beyond what few safeguards there are now. 
2 Among states with ``no more stringent provisions'' are 
Colorado, Kentucky, Montana, New Mexico, Tennessee and Texas. While 
agency guidance is a useful tool to direct the implementation of 
enforceable regulations, it is not an acceptable substitute for a 
federal rulemaking.
3.  EPA should phase-out surface impoundments (waste ponds) at existing 
        coal-fired plants and prohibit the construction of surface 
        impoundments at new plants.
    EPA should prohibit construction of surface impoundments at all new 
coal-fired plants and require a phasing-out of surface impoundments at 
existing plants. Electric utilities have a choice of producing dry or 
wet waste, and given the evidence of damage to human health and the 
environment from disposal of slurried (wet) ash in waste ponds, an 
essential and important step to improve waste management over the long 
term is to require utilities to move toward dry disposal of CCW. The 
dozens of cases of contamination from the leaching of arsenic and other 
pollutants from surface impoundments across the U.S. is testament to 
the danger of wet disposal. As described in this testimony, EPA's 2007 
draft Human and Ecological Risk Assessment of Coal Combustion Wastes 
identifies exceedingly high risks of groundwater contamination from CCW 
surface impoundments and finds that the risk from surface impoundments 
is considerably higher than the risk from CCW landfills. Isolation of 
CCW from water is unquestionably the safest way to dispose of ash. A 
prohibition on new surface impoundments would greatly reduce the risk 
of new cases of poisoning and would ensure that waste management 
practices at the numerous new coal plants coming on line reflect our 
scientific knowledge. This prohibition would guarantee long-term 
protection because CCW waste units, particularly surface impoundments, 
are routinely used for several decades. Communities living near coal-
fired power plants deserve protection from this wholly avoidable threat 
to their health and environment. For existing plants, EPA should 
establish reasonable date for termination of all wet-waste disposal. As 
an added benefit, disposing of dry ash in landfills preserves the ash 
for recycling at a later date.
4.  EPA should prohibit disposal of CCW in sand and gravel pits.
    In view of the clear threat to public health posed by disposal of 
CCW in sand and gravel pits, we ask this Subcommittee to recommend an 
immediate prohibition. Since 2000, EPA has recommended that CCW 
disposal in sand and gravel pits be terminated because of the many 
damage cases resulting from this practice. Recently, CCW disposed in an 
unlined pit caused serious contamination of drinking water at the 
Gambrills site in Maryland. The threat to public health posed by the 
recent dumping (1999 through 2007) is unconscionable, considering EPA's 
long experience with cases of water contamination from this disposal 
practice. EPA has long acknowledged numerous proven damage cases caused 
by CCW disposal in sand and gravel pits, including sites that poisoned 
or threatened public drinking water supplies in Massachusetts, 
Virginia, and three sites in Wisconsin. A prohibition is necessary 
because this dangerous mode of disposal is still an acceptable practice 
in numerous states. In fact, Iowa currently has at least four ongoing 
disposal operations in unlined sand and gravel pits. Once again, EPA's 
scientific findings must be applied in a timely way to prevent future 
harm. In view of CCW's propensity to leach into aquifers from sand and 
gravel pits and the likely paths of migration to residential areas and 
public water supplies, it is necessary to act immediately to avoid 
further injury.
5.  EPA should reject voluntary industry proposals as a substitute for 
        regulation.
    EPA must not consider a voluntary plan proposed by the utility 
industry as a substitute for regulations. If the utility industry is 
interested in moving forward with waste management improvements prior 
to EPA's adoption of regulations, that is commendable. Under no 
circumstances, however, should EPA consider such voluntary measures an 
acceptable substitute for national regulation.
Conclusion
    In conclusion, Mr. Chairman, Representative Pearce and Members of 
the Subcommittee, Earthjustice asks the Subcommittee to ensure the 
promulgation of science-based, minimum federal standards, the hallmark 
of EPA's waste management program, to address the threat posed by coal 
combustion waste disposal. EPA and the National Research Council 
recognize, as does Congress, that mismanagement of CCW causes serious 
injury to public health and the environment. Maintenance of the status 
quo ensures that further damage will occur.
    A great number of communities in the U.S. are concerned about this 
issue. OSM's Advanced Notice of Proposed Rulemaking on the Placement of 
Coal Combustion Byproducts in Active and Abandoned Coal Mines drew over 
4,000 comments from citizens last June, and over 10,000 individuals 
responded to EPA's Notice of Data Availability on Coal Combustion 
Wastes in February 2008. Communities threatened by the disposal of coal 
ash are requesting that minimum standards be put in place as soon as 
possible. These communities, often poor and already fighting 
environmental threats from other sources, need to be protected from 
damage that is wholly preventable.
    In its final Regulatory Determination on Wastes from the Combustion 
of Fossil Fuels, EPA determined that the cost to industry of compliance 
with tailored hazardous waste regulations would be ``only a small 
percentage of industry revenues.'' 3 EPA estimated this cost 
to be ``less than 0.4 percent of industry sales.'' 4 Today, 
EPA is considering regulating CCW under solid waste authority, not 
under the far more costly subtitle C requirements of RCRA. Thus in 
2005, EPA recalculated the cost to industry in its report, Estimation 
of Costs for Regulating Fossil Fuel Combustion Ash Management at Large 
Electric Utilities Under Part 258. EPA concluded that compliance with 
non-hazardous solid waste regulations would be less than half of the 
cost of compliance with hazardous waste rules. 5 Thus the 
cost of safe disposal is not burdensome to industry, although it has 
proved, at site after site, to be catastrophic to the public and the 
environment.
    In sum, I greatly appreciate the Subcommittee's interest in the 
risk of harm posed by CCW and how this problem can be solved by our 
federal agencies. Thank you again, Mr. Chairman, for the opportunity to 
present to you and the Subcommittee information about this critical 
issue.
[GRAPHIC] [TIFF OMITTED] 42878.003

[GRAPHIC] [TIFF OMITTED] 42878.004



    Mr. Costa. Thank you very much. We appreciate your 
testimony and look forward to having an opportunity to get to 
the questions.
    Our next witness is Mr. Norman Harvey, who is a community 
activist in Maryland. We appreciate, Mr. Harvey, your ability 
to be here this morning and to testify before the Subcommittee.

            STATEMENT OF NORMAN HARVEY, President, 
           GREATER GAMBRILLS IMPROVEMENT ASSOCIATION

    Mr. Harvey. Thank you. Thank you, Mr. Chairman. I would 
like to thank you and the Subcommittee for my appearance today, 
as well as Congressman Sarbanes for his public interest in 
health issues in particularly the Gambrills area.
    What I would like to show you today if I can is the site 
map as you see it up here on the screen, the particular area 
where I live, and I am speaking specifically of the Turner Pit 
as well as the Waugh Chapel Pit.
    Historically across the Nation and particularly in 
underrepresented areas, large waste producing corporations have 
sought old mining shafts and abandoned mines for fly ash 
disposal sites with little or no regard for public safety. I 
contend that the problem does not lie primarily with the waste 
product, but the lack of proper safeguards and poorly regulated 
controls and ordinances.
    In 1993, I would like to show you the open fields that are 
next there. Those are the open fields. Those are the cells in 
the Gambrills area where they have produced and dumped coal ash 
deposits. I can elaborate on that more fully in the answer, the 
time and answer period.
    In 1993, EPA, under the Federal Resource Conservation and 
Recovery Act, made the determination that it would no longer 
regulate coal combustion waste as a hazardous waste. In doing 
so, I want to show this slide for the dust pollution that has 
come off the site, as well as the dust storms that have 
polluted the Gambrills area.
    As you can see there, there are two trucks in the 
foreground, but there are dust screens that have caught up the 
particles from the open cells that are consistently open in 
this area for any length of time. The cell itself can be as 
large as a half acre to an acre before they cover it up with 
any type of soil.
    In 1995, and I want to go back to the slide. In 1995, 
Constellation Energy, in partnership with BBSS, Inc., better 
known as Reliable Contractors, commenced depositing fly ash 
into a 63 acre site known as the Turner Pit, as you see there, 
not more than one-half mile from my community, under the guise 
of reclamation, but their real motive was profit.
    According to MDE, approximately two million tons of coal 
ash, which is heavier than fly ash, is captured at this site 
every year and is generated each year in the State of Maryland. 
To date, more than 3.8 million tons of this highly toxic CCB 
have been dumped into the Turner Pit without adequate 
protective devices in place such as liners and leachate 
collecting systems. In addition, the operators have neglected 
early warning signals from monitoring wells.
    State and county officials were well aware of the 
probability of groundwater contamination due to earlier 
contamination of the Brandon Woods/Solley Road residential 
community seven years earlier. The Turner Pit was approved by 
MDE just as the Brandon Woods project with the knowledge that 
severe groundwater and aquifer contamination was an immediate 
threat of endangering the health of its citizens.
    In June of 1999, MDE was made aware of groundwater and 
aquifer contamination above the 500 milligrams per liter permit 
limit for sulfates. MDE and the county health officer allowed 
continued operations, disregarding public health threats to the 
Evergreen and Waugh Chapel communities. Had a specific analysis 
been conducted prior to commencing operations and the prior 
knowledge of the Brandon Woods/Solley Road disaster, this 
second incident would never have been in effect.
    In 2000, MDE allowed special exceptions for extending the 
operation to an adjacent pit known as the Waugh Chapel Pit, 
disregarding specific findings and knowledge of leachate 
contamination at the first site, including airborne 
contamination that I showed you earlier of fly ash particles. 
It has been estimated that these sites have generated more than 
$15 million profit in taxes, permits and fees for Constellation 
Energy.
    In October of 2006, and I am skipping here for the sake of 
time, test wells indicated 4,480 milligrams per liter at the 
Waugh Chapel site, and operations were allowed to continue 
under existing MDE and county scrutiny.
    I might say here that a lot of the residents, Mr. Chairman, 
were forced to hook garden hoses and PVC pipes onto fire 
hydrants for water during the winter. In addition, they are 
currently being furnished 12 ounce bottled water by 
Constellation Energy.
    In 2007, according to a report by the Maryland Department 
of Natural Resources, 34 residential wells were contaminated 
with toxic elements, including arsenic, lead and cadmium, at 
levels as high as three times higher than EPA's maximum 
standard for safe drinking water.
    In September 2007, Constellation Energy voluntarily stopped 
dumping under a consent decree after the site had been 90 
percent filled, but residents are still on bottled water, so it 
is a grave concern to myself and a lot of the other residents 
in the community as to the impact this coal ash has had on our 
lives, our homes and our lifestyles, even the children as far 
as air pollution of contaminants of fly ash.
    So, in closing, I want to thank you very much. There is 
much more, but I thank you for the time that I have been 
permitted to give you just a small overview of the impact that 
this has had on the residents of Evergreen and the Waugh Chapel 
communities.
    [The prepared statement of Mr. Harvey follows:]

               Statement of Norman K. Harvey, President, 
               Greater Gambrills Improvement Association

    I live in a very conservative multi-cultural neighborhood that was 
once predominantly African American. Being an African American and 
having been exposed to the many facets of public service, I was soon 
able to transfer skill sets and assistance to this small community that 
was besieged by large corporations and landfill operators. For decades 
these corporations had targeted them with disposal of chemical waste 
and toxic materials. Too often, and on a continuing basis, large 
organizations and businesses too eager to turn a large profit margin, 
target communities of disproportionate underrepresented minority groups 
(i.e. African Americans, Alaska Natives, American Indians, Mexican 
Americans and Hispanic groups) for chemical and toxic waste disposal.
    Often focusing on certain areas of disparity in subject matter 
areas such as education, criminal and environmental justice, these 
corporations prey on these groups' socioeconomic status to unfairly 
take advantage of their communities, homes and lifestyles. The impact 
of these criminal predators is long felt months if not years later when 
health issues arise, and property and home values diminish. State and 
County officials who often work hand in hand to appease these 
perpetrators have either left office or attribute their decisions to 
the greater good of county revenue generated from taxes, permits and 
fees imposed. The Maryland Department of Environment (MDE), an agency 
charged to protect the environment and public health of its citizens, 
has consistently failed the very citizens that have been aggrieved in 
the Evergreen Road and Waugh Chapel communities.
    In 1995 Constellation Energy in partnership with BBSS, Inc (i.e. 
Reliable Contractors) commenced depositing fly ash into a 63 acre pit 
known as the ``Turner Pit'' not more than one half mile from my 
community under the guise of reclamation but their real motive was 
profit. Fly ash is a byproduct of burned coal from power plants that 
capture it with air pollution control equipment. According to MDE, 
approximately 2 million tons of coal ash (i.e. fly ash and bottom ash, 
which is heavier than fly ash and is captured at the bottom of a 
combustion device) is currently generated each year in the State of 
Maryland. To date, more than 3.8 million tons of this highly toxic CCB 
have been dumped into the ``Turner Pit'' without adequate protective 
devices in place such as liners and leachate collection systems. In 
addition, the operators have neglected early warning signals from 
monitoring wells.
    State and County officials were well aware of the probability of 
groundwater contamination due to earlier contamination of the Brandon 
Woods/Solley Road residential community seven years earlier. The Turner 
Pit project was approved by MDE just as the Brandon Woods project with 
the knowledge that severe ground water and aquifer contamination was an 
immediate threat of endangering the health of its citizens.
    In June of 1999, MDE was made aware of groundwater and aquifer 
contamination above the 500 mg/l (milligrams per liter) permit limit 
for sulfates. MDE and the County Health Officer allowed continued 
operations; disregarding public health threats to the Evergreen and 
Waugh Chapel communities. Had a site specific analysis been conducted 
prior to commencing operations and the prior knowledge of the Brandon 
Woods/Solley Road disaster taken into consideration, this second 
incident of fly ash contamination would have been avoided by having the 
proper safeguards in place. A site analysis would have revealed that 
the acidity of the groundwater causes a greater acceptance to 
contamination without leachate systems and liners in place.
    In 2000, MDE allowed special exceptions for extending the operation 
to an adjacent pit known as the ``Waugh Chapel Pit''; disregarding 
specific findings and knowledge of leachate contamination at the first 
site including airborne contamination of fly ash particles. It has been 
estimated that the sites have generated more than $15 million dollars 
profit in taxes, permits and fees for Constellation Energy (a $19 
billion dollar a year energy giant) and Reliable Contractors.
    In 2004 a pump and treat system was installed at the ``Turner Pit'' 
to stem the tide of leachate plume down gradient from the site; however 
three residential wells already indicate high concentrations of calcium 
and potassium which are precursors to leachate migration, in addition 
to abnormal levels of aluminum being recorded. It is a fact that 
potentially cancer causing sulfates have been discharged into 
residential well water three times higher than EPA regulated safe 
standards.
    In October 2006 test wells indicated 4,480 mgl/l at the Waugh 
Chapel site and operations were allowed to continue under existing MDE 
and County scrutiny. Some residents were forced to depend on garden 
hoses and pipes attached to fire hydrants for water, in addition to 
being furnished 12 ounce bottled water by Constellation Energy during 
the winter season.
    In June 2007, according to a report by Maryland's Department of 
Natural Resources, 34 residential wells were contaminated with toxic 
elements including arsenic, lead and cadmium at levels as high as three 
times EPA's maximum standard for safe drinking water.
    In September 2007 Constellation Energy voluntarily issued a 
``Consent Decree'' to stop fly ash deposits after the site had been 90% 
filled, however the Waugh Chapel residents still rely on 12 ounce 
bottled water for their drinking needs.
    Historically, across the nation and particularly in 
underrepresented areas, large waste producing corporations have sought 
old mining shafts, sand and gravel pits for fly ash disposal sites with 
little or no regard for public safety. The problem does not lie 
primarily with the waste product but the lack of proper safeguards and 
poorly regulated controls and ordinances.
    In 1993 EPA under the Federal Resource Conservation and Recovery 
Act (RCRA) made a determination that it would no longer regulate coal 
combustion waste (i.e. coal ash/fly ash) as a hazardous waste. In doing 
so, EPA gave license to existing state waste managers who were not 
qualified nor equipped to adequately safeguard public safety or public 
drinking water.
    Over the years, MDE has allowed loose interpretation of the EPA 
determination and non- enforcement of the same laws as necessary for 
industrial solid waste landfills. In addition, MDE fore-goes critical 
individual site review and environmental site analyses for permit 
applications. One study indicated that such reviews are critical for 
spotting potential hazardous conditions to communities and homeowners 
who are dependent on groundwater as a drinking water source or as in 
the case of the Crofton Area Township which relies on three aquifers 
for public drinking water as well.
    It is and has been determined that MDE should have required a site 
liner and leachate collection systems prior to the Turner and Waugh 
Chapel operations, but again the Maryland watchdog agency in place 
failed to protect the very citizens who depended on them for their 
public safety and health.
    Currently, MDE is in the process of re-writing proposals and 
regulations for stricter disposal of fly ash but without the 
participation of local citizen groups and environmental justice 
organizations most affected and that would benefit from such 
partnership. Environment Maryland along with Crofton 1st are 
organizations that would prove most beneficial to MDE's newly proposed 
Coal Combustion Byproduct regulations by working with the county and 
state to (1) allow community and public involvement in the rulemaking 
process and (2) ensure that new legal requirements covering the use of 
fly ash in landfills and abandoned mines are adequately protective for 
underrepresented communities that have long been the targets for 
chemical and toxic waste disposal.
    The term, ``beneficial use'' of coal ash must be redefined from 
roadway fill, highway embankments, soil conditioner usage and with 
greater measures to ensure that it is mixed with or used as a bonding 
agent to prohibit environmental/public exposure.
    Federal, State and County officials must safeguard the general 
public and any close lying communities from fly ash particles in 
ambient air. Open fields of fly ash particles generate clouds of dust 
often coating nearby residential homes and cars. Operating permits 
should include plans for monitoring coal dust and stringent 
enforcement.
    Also, any existing CCB facilities should not be grandfathered or 
allowed to expand under old existing permits and/or granted special 
exceptions as currently and previously been the norm.
    Once protective systems are in place (i.e. liners and leachate 
systems) it should be certified and verified by federal, state and/or 
county officials to ascertain that it meets all necessary requirements. 
Officials on site must guarantee correct liner thickness and proper 
placement prior to any fly ash deposits.
    Most importantly, it is of my opinion that statutory mandates 
should be enacted instead of regulations now currently being developed 
or proposed. As seen in the past, regulations can often be 
administratively changed, but statutory mandates that are voted into 
law are not susceptible to quick change by administrative/county 
officials as is currently the case.
    In closing, I would like to see a special delegate for future 
rulemaking processes in the A.A. County assembly and elected by the 
citizens with a defined role to raise environmental issues that have so 
grossly been ignored by State and County officials. Notwithstanding, I 
would also organize a citizen watchdog steering committee entitled 
PECCL (the People's Environmental Coalition for Cleaner Living) that 
would work with that special delegate and serve to ensure that these 
unfortunate events would indeed be a thing forever of the past for 
citizens in Anne Arundel County.
                                 ______
                                 
    Mr. Costa. Thank you, Mr. Harvey, for giving this firsthand 
example. In the question and answer we will have an opportunity 
to get further detail from you. Of course, your entire written 
testimony will be submitted for the record.
    Now we are to that point of questions, and hopefully you 
will provide us with some answers. Mr. Norris and Ms. Evans, in 
the Environmental Protection Agency's list of damage cases from 
coal combustion as of 2007, the list that was provided to us 
totaled 67.
    Do you think that tally of cases is a reflective example, 
or do you think it is just the tip of the iceberg?
    Ms. Evans. Thank you. That is an excellent question. I 
think that it is absolutely just the tip of the iceberg for a 
couple of reasons.
    The first reason is that EPA does not actively investigate 
sites. It relies primarily on citizens to notify EPA of sites, 
citizens or states, but that is no guarantee that the EPA will 
investigate upon notification.
    Second, the primary reason why it is the tip of the iceberg 
is that most sites in this country, most disposal sites, are 
not adequately monitored and some, perhaps the majority, are 
not monitored at all. There are at least 600 disposal units, 
and these are either waste ponds or landfills.
    As EPA noted in its determination in 2000, most of these 
are not monitored, so if there is no groundwater monitoring it 
is extremely difficult or impossible for EPA to determine the 
impact on health and the environment of that unit.
    Mr. Costa. All right. I think you have answered my 
question.
    Ms. Evans. OK.
    Mr. Costa. I am mindful of my time.
    Mr. Norris, do you want to quickly comment?
    Mr. Norris. Only that I think Lisa touched on the basic 
points that I would have touched on.
    Mr. Costa. So you concur in essence?
    Mr. Norris. Pardon?
    Mr. Costa. You concur in essence?
    Mr. Norris. Yes.
    Mr. Costa. Dr. Burke, in the line of questioning that we 
had with previous witnesses I made the comment that what might 
be the best type of framework to deal with this coal waste 
disposal and talked about the Environmental Protection Agency 
setting up the framework with states then requiring to comply 
within a time period.
    With your understanding of the health risks, the risk 
assessment versus the risk management, what would you think is 
the appropriate way to deal with this issue?
    Mr. Burke. Well, I think you heard a number of good 
suggestions because if you have seen one coal waste site it 
seems like you have seen one, and you need to have the tools to 
be able to evaluate them. They are very different.
    For instance, in Anne Arundel County with shallow 
groundwater and sandy soil and acidic groundwater, you have a 
particular threat there that may not be the same in other 
places, like Wisconsin. I think you need to get the tools from 
all three branches of the agencies--strong Federal guidance but 
with states ready to have the authority to move in and to 
oversee the monitoring and the selection and construction and 
management of the sites, and also tools for the locals as you 
hear the frustrations of local folks who are concerned about 
their well water, to be able to conduct investigations and have 
the resources to do that. I think there has to be an active 
partnership.
    As a former state regulator in New Jersey where we have a 
history of things that are buried, as you know----
    Mr. Costa. That is not the waste we are talking about, I 
don't believe.
    Mr. Burke. That is right. That is right. We certainly don't 
want strong constraints over the flexibility of the state 
agencies.
    Mr. Costa. No. I think the states are well prepared to deal 
with it if they are given the goals which to achieve.
    Mr. Norris, quickly. Why do you think some states are more 
effective, like Wisconsin and others, than other states?
    Mr. Norris. I am not extremely sure why. In my experience--
--
    Mr. Costa. All right. Well, if you are not sure why that is 
an answer.
    Mr. Harvey, you in your slides indicated very clearly the 
impact it has had on your community. I would like to kind of 
get a sense of how well you think at this point the state and 
the local authorities have responded and where are you in terms 
of, in your view and the community's, of cleaning up and fixing 
this problem?
    Mr. Harvey. Mr. Chairman, I have been contending with this 
issue well over 13 years, and I contend that MDE has allowed a 
loose interpretation of EPA standards for the disposal of 
chemical waste.
    It has been a frustration for a lot of the residents, as 
well as myself, in trying to get this area cleaned up. As far 
as the aquifers that have been contaminated, as I heard my 
colleague say, you cannot go back and reclaim that. It is done. 
There has not been a very good response by the county and state 
in terms of trying to clean this situation up.
    Mr. Costa. All right. My time has expired, and therefore so 
has yours.
    I don't know if it is fair to put a number on it, but do 
you think the job has been 50 percent done or they haven't 
addressed it at all? I mean, I am trying to get a sense.
    Mr. Harvey. Mr. Chairman, at this point they don't know how 
to address it. The leachate that has migrated under the 
aquifers, the damage has been done.
    There has been certain recommendations of how to actually 
regain the groundwater, but you cannot. There is talk about a 
slurry system, which is very expensive.
    Mr. Costa. So you are saying in essence it hasn't been----
    Mr. Harvey. Nothing has been done to do anything.
    Mr. Costa. OK. All right. All right. Thank you. My time has 
expired.
    And now our Ranking Member, one of our newly elected 
members from Louisiana, Mr. Scalise. Welcome. Good to have you 
here.
    Mr. Scalise. Thank you. Thank you, Chairman Costa. I 
appreciate the introduction.
    Mr. Costa. Scalise or Scalise?
    Mr. Scalise. Scalise.
    Mr. Costa. Scalise.
    Mr. Scalise. That is it.
    Mr. Costa. Italiano?
    Mr. Scalise. Full-blooded. Both parents.
    Mr. Costa. We have a lot of Italianos here this morning.
    Mr. Scalise. Lineage back to Sicily on both sides.
    I don't have a prepared statement, but there were a number 
of organizations that had some testimony that they wanted to 
enter into the record that couldn't be here to testify, and I 
would ask unanimous consent that these documents be included in 
the record for the hearing from the Edison Electric----
    Mr. Costa. Without objection. They will be adopted, and we 
will submit them for the record.
    Mr. Scalise. We will submit all of them. We don't need to 
list them by name. Thank you.
    [NOTE: The documents submitted for the record have been 
retained in the Committee's official files.]
    Mr. Costa. Thank you.
    Mr. Sarbanes for questions?
    Mr. Sarbanes. Thank you, Mr. Chairman. I want to thank you.
    Mr. Costa. The gentleman from Maryland.
    Mr. Sarbanes. Thank you.
    Mr. Costa. A good Greek gentleman from Maryland.
    Mr. Sarbanes. Since we are testing the ethnic origins of 
our panel members today.
    I want to thank the panel because this is the testimony I 
was particularly interested in hearing today on the health 
effects and the impact it is having on people's lives. I am 
coming away from this hearing much more convinced. I mean, I 
was leaning this direction, but I really hear a need for some 
kind of Federal baseline here.
    Because I think that the Federal regulations of some kind 
have the effect of saying sort of stop, look, listen. Before 
you go to dispose of this kind of waste, you need to do 
testing. You need to do an assessment of what kind of combined 
effect of the waste with particular environmental circumstances 
that exist is going to occur and so forth. Without a dedicated 
source of regulatory authority that is addressed to this, I am 
not sure you get that.
    Frankly, it is easy for people to come up with excuses 
later because they say well, this one didn't quite apply and 
that regulation didn't really fit and so forth. There is a lot 
of finger pointing that goes on, particularly now that the 
amount of coal combustion waste that is going to be generated 
looks like it is going to increase significantly for a variety 
of reasons across the country.
    This is a classic instance in which later we will look back 
and we will say we had all the warning signs to put some kind 
of regime in place, and we didn't take advantage of it.
    Mr. Harvey, I want to thank you for your testimony today 
because, frankly, it is citizens like yourself who refuse to 
keep quiet over a period of years that I think end up being the 
ones that bring attention to these sorts of issues and finally 
make it possible to address them.
    Sadly, often the communities that cry out the loudest are 
not the ones that get the benefit of the regulation. It is 
others that do, and you have testified to the fact that ``the 
damage has been done'' in many respect in your community.
    I was curious. Would you describe a little bit more about 
the impact it has had on the lifestyle of residents of your 
community over these period of years, in terms of adjustments 
you have had to make, and other continuing anxieties that you 
may have?
    Mr. Harvey. Well, it continues day-by-day because of the 
fact that since the groundwater--OK. I am sorry. As I was 
saying, it continues daily because of the after effects of the 
groundwater contamination.
    The entire community has to now depend on some aspect of 
public water being put in place. Every well has been somewhat 
contaminated with large concentrations of aluminum, which is a 
precursor to actual contamination of the wells.
    There is a number of children that have been affected, as 
well as older adults and surrounding communities as well. There 
is a little girl named Megan Coleman that lives in the area 
that has asthma, and it has been just exaggerated by the coal 
ash contaminants that have been airborne in ambient air.
    They have no screening process in effect for open fields of 
coal ash contamination as far as the dust particles. Residents 
have power washed their houses and their cars for this fine 
grade dust that has accumulated over the years simply during 
the summer months. It is a continuing battle, Congressman, 
against what we have in terms of what has already been done.
    I am not interested as much in enforcement procedures, but 
I am interested more in administering a baseline for 
preventative measures for this type of contamination. I think 
that the Federal threshold should be much higher than what it 
is in terms of combating the situation.
    There are a lot of recommendations, but we need to put into 
effect those particular rulemaking processes that are in 
process now so this will never happen again, not just in Anne 
Arundel County, but across the Nation as well.
    Mr. Sarbanes. Thank you.
    Real quick, one question for Dr. Burke. You talked about 
the importance of analyzing and trying to measure the combined 
effect of all of these various chemicals that are in the mix, 
and I assume that is difficult to do, but how does one go about 
that?
    I would imagine there are other instances in which the 
combined effects have been measured and steps have been able to 
be taken.
    Mr. Burke. Well, we know even from being careful with drug 
interactions, our own medications, we have to be careful about 
things that might have the same adverse effect.
    The same thing goes for environmental contamination. As you 
heard from Mr. Harvey, there are pathways of exposure that are 
more than just groundwater leaching here. In this specific case 
study of airborne exposure, probably the soil has been 
contaminated by a down wash of things over time too.
    So looking at all the exposure pathways in the risk 
assessment, for instance, EPA's risk assessment should look at 
all those exposure pathways, should look at the full range of 
the toxic substances that I showed to look at the key effects 
and what both their short-term impacts might be, as well as 
long-term increased risk for the community.
    Not just for those acutely exposed, but the long-term risk 
for the aquifer and future generations because billions of 
pounds are kind of forever when they are underground.
    Mr. Sarbanes. Thank you. Thank you.
    Mr. Costa. All right. The panel has done an excellent job, 
and I want to thank you for your comments and your concise 
responses to our questions.
    We have a letter that I would like unanimous consent to 
submit for the record by the State of Wisconsin from their 
Department of Natural Resources detailing the Wisconsin 
experience. Without any objection, we will deem this letter 
submitted for the record.
    [The letter from the Wisconsin Department of Natural 
Resources submitted for the record follows:]

STATE OF WISCONSIN
DEPARTMENT OF NATURAL RESOURCES
101 S. Webster Street
Madison, Wisconsin 53707-7921
Telephone 608-266-2621
Fax: 608-267-3579

June 6, 2008

The Honorable Jim Costa, Chair
Subcommittee on Energy and Minerals
Committee on Natural Resources
U.S. House of Representatives
1626 Longworth House Office Building
Washington, D.C. 20515

SUBJECT:  Beneficial Use and Disposal of Coal Combustion Wastes in 
Wisconsin

Dear Representative Costa:

    I would like to thank you and the members of the House Subcommittee 
On Energy and Minerals for the opportunity to provide information 
regarding our experience with the beneficial reuse and disposal of coal 
combustion wastes (CCWs) in the State of Wisconsin. I regret not being 
able to testify to the Subcommittee in person, but trust that these 
written comments will assist you in your deliberations on this 
important topic.
    We have previously provided the U.S. Environmental Protection 
Agency (EPA) with related comments in response to the Notice of Data 
Availability (NODA) for the Disposal of Coal Combustion Wastes on 
February 11, 2008 and presented a summary of our environmental data 
regarding coal ash disposal sites to the National Research Council 
(NRC) for inclusion in their March 1, 2006 report Managing Coal 
Combustion Residues in Mines.
    Under Wisconsin statutes, CCWs are considered solid wastes and 
their use and disposal have been regulated by the state accordingly 
since the early 1970's. Current regulations limit land disposal to 
licensed, engineered disposal facilities under our NR 500 series of 
administrative rules. Since 1998, use of CCW material for productive 
geotechnical and civil engineering purposes has been governed by a new 
rule, ch. NR 538, Wis. Adm. Code, developed specifically to regulate 
the beneficial reuse of industrial byproducts.
    We believe some level of regulation of these materials is 
necessary. Our administrative rules have grown out of our firsthand 
experience with numerous CCW disposal sites and the collection of 
decades of groundwater and other environmental data. We have observed 
that CCWs can cause significant adverse environmental impacts when 
improperly managed. Two of the most serious damage cases were profiled 
in detail in the NRC report; a number of other disposal sites in 
Wisconsin have caused significant environmental impacts as well. 
Documented impacts have included threats to human health and welfare 
due to contamination of aquifers providing water to private water 
supply wells, impacts to surface waters, and direct toxicity to plant 
life.
    Although contaminants and concentrations have varied considerably 
from location to location due to differences in coal sources, 
combustion methods and disposal practices, we have identified boron and 
sulfate as the two most common CCW constituents exceeding Wisconsin's 
groundwater quality standards. Additional contaminants exceeding 
groundwater standards at or near CCW disposal sites have included 
arsenic, selenium, manganese and, to a lesser extent, molybdenum and 
lead. Other changes to groundwater quality caused by CCW constituents, 
such as increased hardness or alkalinity, can diminish the acceptable 
end uses of groundwater even if specific health-based standards are not 
exceeded.
    Abundant evidence exists to show that uncontrolled CCW disposal can 
cause environmental harm. In Wisconsin it is the older, unlined CCW 
landfills and ash sluicing facilities that have been responsible for 
the vast majority of the documented adverse impacts. By contrast, 
substantial monitoring and performance data affirm that Wisconsin's 
current regulatory requirements for lined CCW landfills with leachate 
collection systems have been very effective in protecting groundwater 
and surface water resources, as have engineered final cover systems on 
the older, unlined CCW landfills.
    Our monitoring data support, that CCWs can be safely and 
effectively reused in a variety of different projects, especially as an 
active ingredient in cement manufacture and as geotechnical fill in 
highway embankments, airport runway improvements and other civil 
engineering applications. In fact, of the approximately 1,131,000 tons 
of CCWs produced in Wisconsin in 2006, over 974,000 tons were 
beneficially reused under our regulations. That is an effective 
recycling rate of 86 percent. One major utility was able to achieve a 
CCW recycling rate of over 100 percent by beneficially reusing not only 
virtually all of their CCW as it was generated, but also coal ash 
previously disposed of in a nearby landfill. The reuse of CCW materials 
in Wisconsin, subject to the design and monitoring standards we have 
implemented, has not caused discernible environmental impacts. Based on 
our experience, we are convinced that a responsible and environmentally 
protective regulatory framework can be developed that encourages the 
beneficial reuse of CCWs, and establishes sensible minimum criteria to 
safely dispose of CCW material if landfilling is unavoidable.
    While we support the creation of a basic national framework on the 
disposal and use of CCWs, we caution that there are too many variables 
at work to justify a set of detailed, one-size-fits-all regulations or 
approaches for the entire country. For instance, groundwater monitoring 
for the chemically conservative elements boron and selenium works very 
well in Wisconsin due to our temperate climate and abundance of high 
quality groundwater near the surface. States in more arid climates with 
high natural backgrounds of these elements may not find this monitoring 
system very effective. Most importantly, the states vary considerably 
in their dependence on groundwater as a drinking water supply and in 
existing groundwater and surface water regulatory structures. States 
and regions also differ with respect to available use markets for CCW 
materials. Federal regulations should not preempt states from providing 
additional necessary protections to their groundwater and surface water 
resources, and should account for the variability that does exist 
amongst states.
    We believe any broad national approach developed under the auspices 
of U.S. EPA for the proper management and monitoring of CCW disposal 
sites should reserve to the states the ability to regulate CCWs beyond 
the federal minimums in a manner they feel is most appropriate given 
their particular circumstances. The U.S. EPA should continue its 
efforts to work with the states and other stakeholders to find 
appropriate beneficial reuses for these materials, thereby minimizing 
the long-term environmental costs of maintaining landfills.
    One way to establish such a framework might be through a federal/
state effort to develop and actively disseminate CCW landfill and 
beneficial use design guidelines upon which specific state requirements 
could be superimposed. U.S. EPA could convene such an effort and also 
facilitate discussions on markets for beneficial reuse of these 
materials. Alternatively, the U.S. EPA could establish federal rules 
that set out certain minimum requirements for disposal and reuse. If 
federal rule making for CCW disposal is pursued, we suggest using as a 
model the existing municipal solid waste (MSW) landfill regulatory 
structure in Part 258 of Subtitle D of RCRA. This program includes 
setting basic rule contents in federal rules and having the EPA regions 
review and authorize state rules for adequacy. This would take 
advantage of the resources that the states have to offer and the 
procedures and precedent set by the Part 258 MSW landfill rules.
    Again, thank you for the opportunity to provide information to this 
Committee. We look forward to engaging in a cooperative effort on this 
important topic with the U.S. EPA and other states. We think we have a 
particularly effective program in place to manage and beneficially 
reuse CCWs and we would be glad to share further details of our 
experiences as well as our environmental data.

Sincerely,

Suzanne Bangert, Director
Bureau of Waste and Materials Management
Wisconsin Department of Natural Resources

cc: Holly Wagenet--via email 
   Wendy VanAsselt--via email
   Margaret Guerriero--EPA Region 5
   Gene Mitchell--WA/5
                                 ______
                                 
    Mr. Costa. At this point in time, I believe, given our 
schedule on the Floor and our other demands, we are going to 
bring this hearing to a close.
    We do have some additional questions from both the Minority 
and Majority Members that we would like to submit to the 
witnesses on the second panel, as well as to the previous 
panel, Panel I, and we would hope that you would be able to 
respond to those written questions with written responses 
within a 10-day notice.
    This is an issue that, frankly, I think we need to continue 
to be focused on. As I mentioned in my opening statement, 
members of the panel, it has been a decade since this Committee 
focused on this issue, which is I think obviously way too long.
    I would also like to get a better sense and will send a 
letter to the Environmental Protection Agency as to where they 
are in terms of the appropriate rulemaking authority and their 
sense on it, and I would also like to get a take from the 
National Conference of State Legislatures, as well as the 
National Governors Association, to once again examine that 
state and Federal role.
    Mr. Harvey, I would suggest to you that as a community 
activist who obviously is frustrated with too many years of a 
lack of response to a serious problem affecting your community, 
that you continue to work with us. I know how sensitive and how 
concerned Congressman Sarbanes is. He has spoken to me about 
this issue on several occasions, which is why his interest is 
here today.
    We will continue to work together and follow up to see if 
we can help you and help your community address the specific 
problems, working with the State of Maryland.
    I want to thank my friends and colleagues from the minority 
side, those who participated, staff and my colleagues on the 
majority and their staff for I think what was a good hearing.
    At this point the Subcommittee will now be adjourned.
    [Whereupon, at 12:00 p.m., the Subcommittee was adjourned.]