[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]


 
                          H.R. 493, COAL ASH 
                       RECLAMATION, ENVIRONMENT, 
                        AND SAFETY ACT OF 2009 

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

                           LEGISLATIVE HEARING

                               before the

                       SUBCOMMITTEE ON ENERGY AND
                           MINERAL RESOURCES

                                 of the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                      Thursday, February 12, 2009

                               __________

                            Serial No. 111-2

                               __________

       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
          DOC HASTINGS, Washington, Ranking Republican Member

Dale E. Kildee, Michigan             Don Young, Alaska
Eni F.H. Faleomavaega, American      Elton Gallegly, California
    Samoa                            John J. Duncan, Jr., Tennessee
Neil Abercrombie, Hawaii             Jeff Flake, Arizona
Frank Pallone, Jr., New Jersey       Henry E. Brown, Jr., South 
Grace F. Napolitano, California          Carolina
Rush D. Holt, New Jersey             Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona            Louie Gohmert, Texas
Madeleine Z. Bordallo, Guam          Rob Bishop, Utah
Jim Costa, California                Bill Shuster, Pennsylvania
Dan Boren, Oklahoma                  Doug Lamborn, Colorado
Gregorio Sablan, Northern Marianas   Adrian Smith, Nebraska
Martin T. Heinrich, New Mexico       Robert J. Wittman, Virginia
George Miller, California            Paul C. Broun, Georgia
Edward J. Markey, Massachusetts      John Fleming, Louisiana
Peter A. DeFazio, Oregon             Mike Coffman, Colorado
Maurice D. Hinchey, New York         Jason Chaffetz, Utah
Donna M. Christensen, Virgin         Cynthia M. Lummis, Wyoming
    Islands                          Tom McClintock, California
Diana DeGette, Colorado              Bill Cassidy, Louisiana
Ron Kind, Wisconsin
Lois Capps, California
Jay Inslee, Washington
Joe Baca, California
Stephanie Herseth Sandlin, South 
    Dakota
John P. Sarbanes, Maryland
Carol Shea-Porter, New Hampshire
Niki Tsongas, Massachusetts
Frank Kratovil, Jr., Maryland
Pedro R. Pierluisi, Puerto Rico

                     James H. Zoia, Chief of Staff
                       Rick Healy, Chief Counsel
                 Todd Young, Republican Chief of Staff
                 Lisa Pittman, Republican Chief Counsel
                                 ------                                


              SUBCOMMITTEE ON ENERGY AND MINERAL RESOURCES

                    JIM COSTA, California, Chairman
           DOUG LAMBORN, Colorado, Ranking Republican Member

Eni F.H. Faleomavaega, American      Don Young, Alaska
    Samoa                            Louie Gohmert, Texas
Rush D. Holt, New Jersey             John Fleming, Louisiana
Dan Boren, Oklahoma                  Jason Chaffetz, Utah
Gregorio Sablan, Northern Marianas   Cynthia M. Lummis, Wyoming
Martin T. Heinrich, New Mexico       Doc Hastings, Washington, ex 
Edward J. Markey, Massachusetts          officio
Maurice D. Hinchey, New York
John P. Sarbanes, Maryland
Niki Tsongas, Massachusetts
Nick J. Rahall, II, West Virginia, 
    ex officio
                                 ------                                






















                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Thursday, February 12, 2009......................     1

Statement of Members:
    Costa, Hon. Jim, a Representative in Congress from the State 
      of California..............................................     6
        Prepared statement of....................................     8
    Lamborn, Hon. Doug, a Representative in Congress from the 
      State of Colorado..........................................     4
        Prepared statement of....................................     5
    Lummis, Hon. Cynthia M., a Representative in Congress from 
      the State of Wyoming.......................................    42
        Prepared statement of....................................    42
    Rahall, Hon. Nick J., II, a Representative in Congress from 
      the State of West Virginia.................................     2
        Prepared statement of....................................     3

Statement of Witnesses:
    Akins, N.K. (Nick), Executive Vice President for Generation, 
      American Electric Power....................................    27
        Prepared statement of....................................    28
        Response to questions submitted for the record...........    45
    Craynon, John R., P.E., Chief, Division of Regulatory 
      Support, Office of Surface Mining Reclamation and 
      Enforcement, U.S. Department of the Interior...............    10
        Prepared statement of....................................    11
    FitzGerald, Tom, Director, Kentucky Resources Council, Inc...    13
        Prepared statement of....................................    15
        Suggested Amendments To H.R. 493.........................    17
        Response to questions submitted for the record...........    46
    McAteer, J. Davitt, Vice President for Sponsored Programs, 
      Wheeling Jesuit University.................................    18
        Prepared statement of....................................    20
        Response to questions submitted for the record...........    52

Additional materials supplied:
    Gruzesky, Sandra, P.E., Director, Division of Water, 
      Department for Environmental Protection, State of Kentucky, 
      Statement submitted for the record.........................    24
    List of documents retained in the Committee's official files.    52


    LEGISLATIVE HEARING ON H.R. 493, TO DIRECT THE SECRETARY OF THE 
INTERIOR TO PROMULGATE REGULATIONS CONCERNING THE STORAGE AND DISPOSAL 
OF MATTER REFERRED TO AS ``OTHER WASTES'' IN THE SURFACE MINING CONTROL 
    AND RECLAMATION ACT OF 1977, AND FOR OTHER PURPOSES. ``COAL ASH 
           RECLAMATION, ENVIRONMENT, AND SAFETY ACT OF 2009''

                              ----------                              


                      Thursday, February 12, 2009

                     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 1324, Longworth House Office Building, Hon. Jim Costa 
[Chairman of the Subcommittee] presiding.
    Present: Representatives Costa, Lamborn, Sarbanes, Rahall, 
Chaffetz, and Lummis.
    Mr. Costa. The legislative hearing of the Subcommittee on 
Energy and Mineral Resources will now come to order.
    This morning the Subcommittee will hear testimony on H.R. 
493, which was introduced by the Chairman of the Natural 
Resources Committee, my good friend, Chairman Rahall, from West 
Virginia. This bill would direct the Secretary of the Interior, 
if it were to become law, to promulgate regulations concerning 
the storage and disposal of matter that is commonly referred to 
as ``other wastes'' in the Surface Mining Control and 
Reclamation Act of 1977, and for other purposes.
    We are going to hear testimony this morning with four 
distinguished witnesses who have expertise in this area on not 
only the construct of the legislation, but also any advice they 
have in terms of how we can incorporate best management 
practices, given the science, to ensure that we protect health 
and safety, and we do it in a cost-effective way.
    I have a few ministerial items that I must dispense with at 
this time. Under Committee Rule 4[g], the Chairman and Ranking 
Member--that is my colleague here, Mr. Lamborn, and I can make 
opening statements. And if other Members have statements, they 
can be included in the hearing record under unanimous consent.
    We will defer a bit from that this morning to allow the 
Chairman of the full committee, Chairman Rahall, whose 
distinguished service for many years--not that he is old, but 
he was very young when he came here----
    [Laughter.]
    Mr. Costa. I call that Arctic blond. And Doc Hastings, who 
is also a good friend, and is from the State of Washington, to 
make opening comments, along with my Ranking Member and myself.
    And then for the rest of the Members, if you do have 
statements, we will submit them for the record, because we want 
to get to the heart of the matter, which is the four witnesses 
that we have here today, and allow them to present their 
testimony, so that we can then proceed with the questions and 
comments.
    In addition, for Members of the Subcommittee and for those 
new Members, under Rule 4[h], any materials that are submitted 
for inclusion in the hearing record must be submitted no longer 
than 10 days within the hearing date period. And if you have 
any additional questions which you would like to submit to the 
witnesses, we have that 10-day period. We would only ask to 
assist both Minority and Majority staff that you do it sooner, 
rather than later. It is helpful to the witnesses, and it is 
helpful for us to get the answers back, and that they can be 
included in the record.
    With that said, I will defer to the Chairman of the Natural 
Resources Committee, Chairman Rahall, to give his opening 
statement. This is his legislation. This is something that he 
has a long track record and experience with, not just as it 
relates to the coal mining industry in West Virginia, but 
resources throughout the nation. And we look forward to hearing 
from you.
    Chairman Rahall.

STATEMENT OF THE HONORABLE NICK J. RAHALL, II, A REPRESENTATIVE 
          IN CONGRESS FROM THE STATE OF WEST VIRGINIA

    Mr. Rahall. Thank you, Mr. Chairman. I appreciate your not 
only having this hearing today, but the fact that you are 
making this the first issue to be considered by your 
Subcommittee in this Congress.
    I want to congratulate the gentleman from Colorado, Mr. 
Lamborn, on becoming your Ranking Member on the Subcommittee.
    When I introduced H.R. 493, I noted that years ago, a West 
Virginia coal miner wrote a letter to me noting that every 
single Federal law regulating coal was penned in blood. He was 
referring to the fact that it took a 1968 explosion claiming 78 
souls in a mine in Farmington, West Virginia, to give rise to 
the Federal Coal Mine Health and Safety Act of 1969. And that 
it took the failure of a coal slurry impoundment at Buffalo 
Creek in Logan County, West Virginia that killed 125 people for 
the Congress to finally pass the Surface Mining Control and 
Reclamation Act of 1977.
    When that facility owned by the Tennessee Valley Authority 
gave way, unleashing an avalanche of coal ash sludge that 
covered more than 300 acres, I noted that this time Heaven 
intervened. And thankfully, no lives were lost.
    We need to learn a lesson from what happened in Kingston, 
Tennessee. This issue cannot be ignored. I believe we have a 
ticking time bomb on our hands.
    The electric utility industry generates 131 million tons of 
coal ash each year, yet the disposal of this massive amount of 
material is the subject of a patchwork of state regulations: 
some very good, some not so good, some bordering on the non-
existent.
    The bill that I have introduced seeks to deal with just one 
aspect of the issue of regulating the management of coal 
combustion waste. It is a rifle shot aimed at ensuring the 
structural stability of coal ash impoundment.
    There remains, of course, the much broader issue of 
regulating the disposal of these wastes in landfills and in 
coal mines.
    Last week, I sent a letter to the EPA Administrator, Lisa 
Jackson, urging her to move forward with a comprehensive coal 
combustion waste regulatory regime under the Resource 
Conservation and Recovery Act. Congress directed EPA to do this 
back in 1980. Twenty-nine years later, 29 years later, there 
are still no regulations on the books.
    I look forward to hearing from our witnesses today. Davitt 
McAteer, from my home State of West Virginia, is an expert on 
so many coal-related issues. He has been our guru when it comes 
to mine health and safety in our State of West Virginia. He has 
a national record in that regard. And he is a man most 
qualified to speak on this and so many coal-related issues.
    Tom FitzGerald, we recognize and welcome you, as well. I'm 
certainly happy to have both of these gentlemen, who have 
worked with my staff and myself for a number of years, and I 
appreciate your taking time to come to Washington for this 
hearing, as well as all of the panelists. We welcome you.
    And thank you, Mr. Chairman, again for recognizing me.
    [The prepared statement of Mr. Rahall follows:]

       Statement of The Honorable Nick J. Rahall, II, Chairman, 
                     Committee on Natural Resources

    Thank you, Chairman Costa, for holding this hearing and for making 
this the first issue to be considered by the Subcommittee in the new 
Congress. To the gentleman from Colorado, Mr. Lamborn, congratulations 
on your being named as the Subcommittee Ranking Member.
    When I introduced H.R. 493, I noted that years ago a West Virginia 
coal miner wrote a letter to me noting that every single federal law 
regulating coal was penned in blood. He was referring to the fact that 
it took a 1968 explosion claiming 78 souls at a mine in Farmington, 
West Virginia, to give rise to the Federal Coal Mine Health and Safety 
Act of 1969. And that it took the failure of a coal slurry impoundment 
at Buffalo Creek, in Logan County, West Virginia, that killed 125 
people, for the Congress to finally pass the Surface Mining Control and 
Reclamation Act of 1977.
    When that facility owned by the Tennessee Valley Authority (TVA) 
gave way, unleashing an avalanche of coal ash sludge that covered more 
than 300 acres, I noted that this time Heaven intervened, and 
thankfully no lives were lost.
    We need to learn a lesson from what happened at Kingston, 
Tennessee. This issue cannot be ignored. I believe we have a ticking 
time bomb on our hands.
    The electric utility industry generates 131 million tons of coal 
ash each year. Yet, the disposal of this massive amount of material is 
the subject of a patchwork of State regulation, some very good, some 
not so good, some bordering on the non-existent.
    The bill I have introduced deals with just one aspect of the issue 
of regulating the management of coal combustion wastes. It is a rifle 
shot aimed at ensuring the structural stability of coal ash 
impoundments. There remains the much broader issue of regulating the 
disposal of these wastes in landfills and coal mines.
    Last week I sent a letter to EPA Administrator Lisa Jackson urging 
her to move forward with comprehensive coal combustion waste regulatory 
regime under the Resource Conservation and Recovery Act. Congress 
directed EPA to do this back in 1980. Twenty-nine years later, there 
are still no regulations on the books.
    I look forward to hearing from the witnesses today. Davitt McAteer 
is from my home State of West Virginia, and is an expert on many coal-
related issues. Tom FitzGerald, welcome also. Both of these gentlemen 
have worked with my staff and me for many, many years, and I appreciate 
your taking the time to come to Washington, D.C., for this hearing, as 
well, to all of the witnesses. Thank you.
                                 ______
                                 
    Mr. Costa. Thank you, Chairman Rahall, for setting the 
table in, I think, a very illustrative way that talks about the 
importance of this legislation that we are going to be hearing 
about today.
    I would like to defer at this time to my colleague, the 
Ranking Member of the Subcommittee, Mr. Lamborn from Colorado.

 STATEMENT OF THE HONORABLE DOUG LAMBORN, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF COLORADO

    Mr. Lamborn. Thank you, Mr. Chairman. And I want to thank 
all the members of the public who are here, and the witnesses.
    Also on the Subcommittee, I want to welcome two of the new 
Members who are on the Subcommittee, Mr. Chaffetz from Utah and 
Mr. Fleming from Louisiana. And also the ex officio Ranking 
Member of the full committee, Rep. Hastings from Washington.
    And thank you, Mr. Chairman, also for holding this 
important legislative hearing on H.R. 463, the Coal Ash 
Reclamation, Environment, and Safety Act of 2009.
    This is my first hearing as Ranking Member of this 
Subcommittee, and as such, I look forward to working with you 
to address the pressing energy and mineral needs facing our 
nation. This committee has jurisdiction over the many rich 
resources of our Federal lands.
    Today's hearing focuses on coal, which could be America's 
largest energy source. But we will also focus later on oil and 
natural gas, both of which America has in abundance. In 
addition, we should examine America's carbon-free energy 
sources.
    Ensuring that the lands under our jurisdiction can be used 
to promote wind, solar, tidal, geothermal, and hydropower, and 
that we are working to promote a sound supply of uranium for 
America's nuclear future, are also priorities.
    I look forward to working with you over the next two years, 
Mr. Chairman, to address what I believe is our shared goal: 
energy independence for America.
    That said, today's hearing is focused on developments from 
a disaster last December, where the Tennessee Valley Authority, 
or TVA's, Kingston, Tennessee coal-fired power plant suffered a 
dam failure that released 5.4 million cubic yards of coal ash, 
covering 300 acres of land and spilling into the Emery River 
adjacent to the plant. This accident has brought renewed 
attention to the reuse, storage, and disposal of coal ash, a 
byproduct of burning coal for electrical power generation.
    A second spill of gypsum slurry at another TVA coal-fired 
power plant just three weeks later raised additional questions 
about the safety and accountability of maintenance at power 
plants.
    While most of the land area covered by the Kingston failure 
is owned by TVA, the ash impacted 40 private homes, destroying 
three. Fortunately, water analysis of private wells, river 
water, and treated water conducted by the Tennessee Department 
of Environment and Conservation did not show any values above 
drinking water standards.
    TVA is a government entity created in 1933 as part of 
President Roosevelt's New Deal effort to bring the country out 
of the Great Depression. Historically, jurisdiction of TVA does 
not come under this committee, but rather, under the 
jurisdiction of the Transportation and Infrastructure 
Committee.
    The fly ash impoundments and landfills at coal-fired power 
plants are regulated by state agencies that have delegative 
authority from EPA for Clean Water Act permits, and state 
agencies with responsibility for dams and waste disposal. 
Currently there is not a national standard for such dam safety.
    Regulation of impoundments at coal mines comes under the 
Surface Mine Control and Reclamation Act of 1997, which is 
overseen by the Office of Surface Mining in the Department of 
the Interior.
    Coal is mined in 27 states, 24 of which have delegated 
authority under SMCRA. However, 37 states rely on power 
generated from coal-fired power plants. Remember, 50 percent of 
the nation's electricity is generated from coal-fired power 
plants.
    In my own State of Colorado, 70 percent of our power is 
generated from coal. But I digress.
    My main point here is that under this legislation, the 
Office of Surface Mining will have to expand into 10 additional 
states, and it seems that such an expansion will further 
complicate an already complicated jurisdictional and regulatory 
picture.
    Moreover, there does not seem to be a funding mechanism in 
the legislation to accomplish such an expansion and enforce the 
requirements of the proposed legislation.
    I would suggest a more surgical approach to work with the 
states that have coal-fired power plants and the Federal 
agencies with regulatory authority over these facilities to 
identify any gaps in the regulatory framework to develop a 
national standard or best practices for these facilities.
    I look forward to hearing from our witnesses today. And I 
also look forward to working with the Chairman to address these 
and other problems.
    Thank you, and I yield back.
    [The prepared statement of Mr. Lamborn follows:]

       Statement of The Honorable Doug Lamborn, Ranking Member, 
              Subcommittee on Energy and Mineral Resources

    Thank you, Mr. Chairman, for holding this important legislative 
hearing on H.R. 463 the ``Coal Ash Reclamation, Environment, and Safety 
Act of 2009.''
    This is my first hearing as Ranking Member of this Subcommittee, 
and as such, I look forward to working with you to address the pressing 
energy and mineral needs facing our nation. This Committee has 
jurisdiction over the rich resources of our federal lands.
    Today's hearing focuses on coal, which could be America's largest 
energy source, but we also will focus later on oil, natural gas both of 
which America has in abundance. In addition, we should examine 
America's carbon free energy sources.
    Ensuring that the lands under our jurisdiction can be used to 
promote wind, solar, tidal, geothermal and hydropower, and that we are 
working to promote a sound supply of uranium for America's nuclear 
future. I look forward to working with you over the next two years, Mr. 
Chairman, to address what I believe is our shared goal, energy 
independence for America.
    That said, today's hearing is focusing on developments from a 
disaster last December where the Tennessee Valley Authority's (TVA) 
Kingston, Tennessee coal-fired power plant suffered a dam failure that 
released 5.4 million cubic yards of coal ash covering 300 acres of land 
and spilling into the Emery River adjacent to the plant. This accident 
has brought renewed attention to the reuse, storage and disposal of 
coal ash, a byproduct of burning coal for electrical power generation.
    A second spill of gypsum slurry at another TVA coal fired power 
plant just three weeks later raised additional questions about the 
safety and accountability of maintenance at power plants.
    While most of the land area covered by the Kingston failure is 
owned by TVA, the ash impacted 40 private homes, destroying three. 
Fortunately water analysis of private wells, river water and treated 
water conducted by the Tennessee Department of Environment and 
Conservation did not show any values above drinking water standards.
    TVA is a government entity created in 1933 as part of President 
Roosevelt's New Deal effort to bring the country out of the Great 
Depression. Historically, jurisdiction of TVA does not come under this 
Committee but rather is under the jurisdiction of the Transportation 
and Infrastructure Committee.
    The fly ash impoundments and landfills at coal-fired power plants 
are regulated by state agencies that have delegated authority from EPA 
for Clean Water Act permits and state agencies with responsibility for 
dams and waste disposal. Currently there is not a national standard for 
such dam safety.
    Regulation of impoundments at coal mines comes under the Surface 
Mine Control and Reclamation Act of 1997 (SMCRA) which is overseen by 
the Office of Surface Mining in the Department of the Interior. Coal is 
mined in 27 states, 24 of which have delegated authority under SMCRA. 
However, 37 states rely on power generated from coal fired power 
plants. Remember 50% of the nation's electricity is generated from 
coal-fired power plants.
    In my own state of Colorado 70% of our power is generated from 
coal, but I digress--my main point here is that under this legislation 
the Office of Surface Mining will have to expand into 10 additional 
states. And it seems that such an expansion will further complicate an 
already complicated jurisdictional and regulatory picture. Moreover, 
there does not seem to be a funding mechanism in the legislation to 
accomplish such an expansion and enforce the requirements of the 
proposed legislation.
    I would suggest a more surgical approach to work with the states 
that have coal fired power plants and the federal agencies with 
regulatory authority over these facilities to identify any gaps in the 
regulatory framework to develop a national standard or best practices 
for these facilities.
    I look forward to hearing from our witnesses today and also look 
forward to working with the Chairman to address this problem.
                                 ______
                                 

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

    Mr. Costa. Thank you very much, gentleman from Colorado, 
for your constructive comments in general, and specifically 
your observations as it relates to the legislation before us.
    I would like to open on my comments at this point in time, 
first to tell Members of the Subcommittee that we welcome all 
of you. And for those of you who I have had the opportunity and 
pleasure to work with in the past, I want to continue the 
comity and the bipartisan working relationships that I have 
tried to maintain since I have come to Congress.
    For those of you that are new Members, I welcome you. This 
is a, I think, one of the very interesting and important 
Subcommittees, not only for the full Natural Resources 
Committee, but one of the important Subcommittees in Congress. 
Because we are the stewards of resources on Federal lands, 
resources that provide so much important energy and materials 
for our nation.
    But yet, Federal lands which we also have a dual 
responsibility to protect and maintain for future generations. 
These lands, after all, belong to all Americans.
    And so the difficult part that this Subcommittee has, along 
with the full committee of course, is to provide that balancing 
act; to be good stewards of lands that are under the custody of 
this policy committee, but belong to all Americans; and yet, at 
the same time, to provide a balance to utilize those in what 
are good, mindful practices that protect it for future 
generations to come.
    The 111th Congress and the first meeting of this 
Subcommittee will focus again on disposal of coal ash, because 
of the importance that Chairman Rahall indicated in his opening 
statement. But we will have an active schedule that will, I 
will share with the Subcommittee Members as we continue to 
meet, not only this year, but next year, throughout the 111th 
Congress. And I look forward to doing good work with each and 
every one of you.
    The witnesses that we have will testify on a host of 
issues: the growing quantity of coal ash that we produce when 
we burn coal at our power plants. There are about 131 million 
tons a year; that is equivalent to the United States' entire 
municipal solid waste production. It is a large waste stream 
that we are dealing with here.
    There are dangerous elements within coal ash, as was noted 
before. It contains arsenic, selenium, mercury, and other heavy 
metals that can cause cancer and impact the nervous systems for 
all of us. The risks, therefore, presented by the lack of 
Federal regulation and inconsistent state regulation on coal 
ash I think is significant. And trying to develop a uniform 
standard is what the legislation that Chairman Rahall has 
introduced, frankly is all about.
    Almost all seven expert witnesses last year, when we last 
held a hearing on this matter, as a result of Congressman 
Sarbanes' interest because of issues that he has dealt with 
first-hand in his own Congressional district, provided 
information as it relates to state agencies. That hearing 
called for a minimum Federal standard for coal ash disposal, to 
protect citizens and our natural resources.
    But we had a witness that testified that called for the 
current approach to coal ash disposal as foolish and dangerous. 
This was last year, before the incident that took place in 
December.
    A professor from the University of Colorado School of Law 
predicted that he believed that if we did nothing, that we 
could expect to see problems in the future. And of course, 
sadly that has proved prophetic.
    In June 2008, the coal ash hearing that we held was just 
the beginning of the Subcommittee's work, which is why we are 
holding this hearing today. The disaster that took place in the 
Tennessee Valley Authority Kingston coal-fired power plant in 
December, plus coal ash from, put it front and center as it 
relates to this Subcommittee's efforts. That is why we are 
holding this as our first hearing.
    The Kingston spill focuses us specifically on surface 
impoundments and ash ponds, and the roughly one quarter of the 
coal ash that is dumped in them. And Kingston, Tennessee did 
not have a unique coal ash pond. There are plenty of bigger 
coal ash impoundments nationwide. We have substantiated that on 
material that has been provided to you, in a report that was 
provided by the Environmental Integrity Project.
    For example, a plant in Orlando disposal of over one 
million pounds of lead surface impoundments between 2000 and 
2006, three times as much as contained in the Kingston during 
that same time period.
    The legislation that we are going to be discussing here 
today, and that we want our witnesses to testify on, H.R. 493, 
the Coal Ash Reclamation Enforcement and Safety Act of 2009. As 
we noted, this bill, as Chairman Rahall noted and I concur, is 
all about common sense. It will make coal ash ponds and 
utilities at TVA safer. New impoundments would meet standards 
and stability for careful design, and they would provide 
uniformity throughout the country if this legislation were to 
become law.
    It would also require national assessment of roughly 300 
existing impoundments, and create a Federal authority to 
require changes, if needed, to make those 300 impoundments 
safer. And it will ensure regular oversight and inspections on 
all that would qualify under this legislation, were it to 
become law.
    We look forward to hearing from the four witnesses today on 
the spill, and get their perspectives on how to best, how to 
best prevent coal and ash pond spills and leaks in the future.
    [The prepared statement of Mr. Costa follows:]

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

    Today is the first hearing of the 111th Congress of the Energy and 
Mineral Resources Subcommittee.
    Our first priority is to make disposal of coal ash safe for people 
and communities.
    Last year, the Subcommittee examined the environmental and health 
risks of coal ash. Witnesses at that June 2008 hearing testified on:
      The growing quantity of coal ash we produce when we burn 
coal at power plants--about 131 million tons a year, equivalent to U.S. 
municipal solid waste production.
      The dangerous elements of coal ash--it contains arsenic, 
selenium, mercury and other heavy metals. These can cause cancer or 
damage the nervous system.
      The risks presented by the lack of federal regulation and 
inconsistent state regulation of coal ash.
    Almost all the seven expert witnesses last year, including a state 
agency, called for a minimum Federal standard for coal ash disposal to 
protect citizens and their natural resources. A witness from 
Earthjustice called the current approach to coal ash disposal ``foolish 
and dangerous.'' And, a professor from the University of Colorado 
School of Law predicted, ``I think we can expect to see problems in the 
future.''
    The June 2008 coal ash hearing was just the beginning of our 
Subcommittee's examination of coal ash disposal options and management.
    The disaster with coal ash at the Tennessee Valley Authority's 
Kingston coal-fired power plant in December puts coal ash front and 
center on our agenda. The Kingston spill focuses us specifically on 
surface impoundments or ``ash ponds''--and the roughly one-quarter of 
coal ash that is dumped in them.
    Kingston, Tennessee did not have unique coal ash ponds. There are 
plenty of bigger coal ash impoundments nationwide. Some hold far more 
chemicals according to a January report by the Environmental Integrity 
Project. For example, a plant in Orlando disposed of 1 million pounds 
of lead in surface impoundments between 2000 and 2006--three times as 
much as Kingston in the same period.
    Our Natural Resources Committee Chairman, Rep. Rahall, took 
immediate action after the Tennessee coal ash disaster by introducing 
H.R. 493, the legislation we will focus on today.
    This bill is about common sense. It will make coal ash ponds at 
utilities, like the impoundment's at Tennessee Valley Authority's 
Kingston Plant, safer. New impoundments would meet standards for 
stability and careful design. It will require a national assessment of 
the roughly 300 existing impoundments and creates Federal authority to 
require to changes, if needed, to make them safe. And, it will ensure 
regular oversight and inspections.
    I look forward to hearing from our 5 witnesses today on this bill--
and their perspectives on how best to prevent future coal ash pond 
spills and leaks.
                                 ______
                                 
    Mr. Costa. With that, let us move to the witnesses. Let me 
first note that Members of the Subcommittee and those in the 
audience may have, when you received the witness list, noticed 
that we had five individuals testifying here this morning. 
Sadly, Ms. Sandy Gruzesky, who is the Director in the Division 
of Water for the Department of Environmental Protection for the 
State of Kentucky, has, I have been informed, been in an auto 
accident. And sadly, she has had serious injuries. Her 
colleague, who will testify today, Mr. FitzGerald, has 
indicated that she is in surgery this morning. We want to 
convey our thoughts and prayers to Ms. Gruzesky and her family, 
and we wish her a speedy recovery.
    And so, Members of the Subcommittee, we will have four 
witnesses that we will begin here today.
    We have Mr. John Craynon, Chief, Division of Regulatory 
Support for the Office of Surface Mining Reclamation and 
Enforcement with the Department of the Interior.
    We have Mr. Tom FitzGerald, Director for the Kentucky 
Resources Council, who informed us of Ms. Gruzesky's 
circumstance. And we thank you for coming.
    We have Mr. Davitt McAteer, who Chairman Rahall spoke of 
earlier, who is the Vice President for Sponsored Programs and 
the CEO for the Center of Educational Technologies and National 
Technological Transfer Center at a fine university, Wheeling 
Jesuit University in West Virginia.
    And Nick Akins, the Executive Vice President for Generation 
of the American Electric Power Service Corporation.
    Gentlemen, I don't know how many of you have testified 
before, but we have some simple rules here. If you notice, on 
my left is a device that keeps time. And it has a green light, 
and it has a yellow light, and it has a red light. You have 
five minutes. At the end of four minutes that green light will 
change to yellow, and that means you have a minute left. And 
then when it turns red, your chair will eject. No, that doesn't 
happen.
    [Laughter.]
    Mr. Costa. But we do want you to be timely in that. And 
when you see it red, to begin to wind up your comments. And we 
try to follow the time rule so that everybody gets an 
opportunity to testify, and everybody gets an opportunity to 
get to the part we like best, which is the question-and-answer 
period.
    Having said that, Mr. John Craynon, Chief, Division of 
Regulatory Support with the Office of Surface Mining 
Reclamation and Enforcement for the Department of the Interior, 
you are on. You are first, and we look forward to your 
testimony.

  STATEMENT OF JOHN R. CRAYNON, CHIEF, DIVISION OF REGULATORY 
SUPPORT, OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT, 
                U.S. DEPARTMENT OF THE INTERIOR

    Mr. Craynon. As you can tell, I am a first-timer; I didn't 
know to turn the microphone on.
    Mr. Chairman and Members of the Subcommittee, thank you for 
the opportunity to participate in this hearing to discuss the 
important issues relating to coal ash impoundments and storage 
areas that are addressed by H.R. 493, the Coal Ash Reclamation, 
Environment, and Safety Act of 2009.
    My name is John Craynon, and I am Chief of the Division of 
Regulatory Support at the headquarters office of the Office of 
Surface Mining Reclamation and Enforcement. I have been at OSM 
for over 12 years, and have spent the past 25 years at the 
Department of the Interior. I am also a professional engineer, 
licensed in the Commonwealth of Virginia.
    The Department of the Interior and the Administration are 
currently weighing how best to address this legislation. The 
Administration has not yet come to a conclusion, as we consider 
different regulatory authorities and approaches for this issue, 
but will do so in the future.
    The remainder of my comments today focus on the technical 
aspects of the bill, and are not intended to be the official 
position of the Department or the Administration on this 
legislation.
    Impoundment safety was one of the motivating factors for 
the passage of the Surface Mining Control and Reclamation Act 
of 1977, and the creation of the bureau for which I work. The 
failure of a coal waste impoundment at Buffalo Creek, West 
Virginia, which Chairman Rahall has noted earlier, resulted in 
a catastrophic loss of life and enormous property damage, and 
that provided the impetus for legislative action.
    Impoundment safety is an integral part of the Surface 
Mining Regulatory Program, as it has been from the very 
beginning. The recent failures of coal ash impoundments in 
power plants operated by the Tennessee Valley Authority have 
created a similar impetus for action, this time regarding the 
construction and safety of impoundments at non-mining sites.
    H.R. 493 assigns three major responsibilities to the 
Secretary of the Interior. First, it requires him to establish 
a regulatory framework for coal ash impoundments, using the 
provision of SMCRA related to impoundments and waste piles as 
the foundation.
    Second, the bill requires him to conduct an inventory of 
existing impoundments, including an assessment of the risks 
they pose to human health and the environment.
    Third, the bill provides the Secretary with the authority 
to issue orders based on that risk assessment that would 
require existing coal ash impoundments to comply with the new 
regulatory program.
    Implementation of these provisions would require a 
significant commitment of Department resources. This new 
program would apply not just to those areas with coal mining 
activity, but also to a new universe of materials and sites 
beyond active and abandoned coal mining sites.
    As you know, this would be a very significant expansion of 
OSM's authority and scope of responsibilities.
    Additionally, we believe the ambitious six-month timeframe 
allowed for publication of a regulatory program would be very 
difficult to meet. Historically, the development and 
publication of a proposed rule has required an excess of one 
year, to allow for public outreach, preparation of supporting 
documentation, and consultation that may be required with 
agencies such as the U.S. Army Corps of Engineers, the U.S. 
Environmental Protection Agency, and other Federal and state 
and tribal agencies that may also have statutory and regulatory 
responsibilities related to these impoundments.
    We believe it is important and appropriate to define more 
clearly the scope of this legislation. Specifically, a more 
precise definition of covered waste should be considered. 
Neither SMCRA nor its implementing regulations define the term 
``other waste,'' as used in Section 515[b][11] of SMCRA.
    If the intent of H.R. 493 is to ensure regulation of all 
surface impoundment facilities constructed of or containing the 
products of coal combustion, the term ``slag'' should be 
eliminated, because that encompasses a broad range of 
industrial wastes, not just coal combustion byproducts.
    Additionally, defining covered waste in a manner consistent 
with the definition of coal combustion products and ASTM 
Standard 2201-02a would ensure the appropriate degree of both 
inclusivity and exclusivity.
    We also believe that the term ``impoundment'' and its 
definition as used in this bill may be unnecessarily confusing. 
In common usage, the term ``impoundment'' refers only to 
structures holding liquid or semi-liquid materials.
    The current definition of covered waste in the bill also 
includes materials stored or disposed of in solid form. The 
bill defines impoundment as any dam or embankment used to 
retain the covered waste. When these two definitions are read 
together, the bill could be construed as applying to piles 
constructed of solid coal combustion byproducts.
    The meaning and applicability of the bill would be clearer 
if it were revised to apply to any pile or impoundment 
constructed for the purpose of disposal or long-term storage of 
coal combustion byproducts.
    We have other technical comments that we would be pleased 
to share with the Subcommittee upon request.
    Mr. Chairman, we look forward to working with the 
Subcommittee and staff in providing our technical expertise on 
impoundment safety and security.
    I will be happy to address any questions the Subcommittee 
might have.
    [The prepared statement of Mr. Craynon follows:]

   Statement of John R. Craynon, P.E., Chief, Division of Regulatory 
     Support, Office of Surface Mining Reclamation and Enforcement

    Mr. Chairman and members of the Committee, thank you for the 
opportunity to participate in this hearing and discuss the important 
issues relating to coal ash impoundments and storage areas that are 
addressed by H.R. 493, the ``Coal Ash Reclamation, Environment and 
Safety Act of 2009.''
    My name is John Craynon, and I am the Chief of the Division of 
Regulatory Support at the headquarters of the Office of Surface Mining 
Reclamation and Enforcement (OSM). I have been at OSM for over 12 years 
and have spent the past 25 years at the Department of the Interior. I 
am also a professional engineer, licensed in the Commonwealth of 
Virginia.
    The Department of the Interior and the Administration are currently 
weighing how best to address this legislation. The Administration has 
not yet come to a conclusion as we consider different regulatory 
authorities and approaches for this issue, but will do so in the 
future. The remainder of my comments today focuses on the technical 
aspects of the bill and are not intended to provide the official 
position of the Department of the Interior or the Administration on 
this legislation.
    Impoundment safety was one of the motivating factors for passage of 
the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the 
Act) and the creation of the bureau for which I work. The failure of a 
coal waste impoundment at Buffalo Creek, West Virginia, in 1972, which 
resulted in a catastrophic loss of life and enormous property damage, 
provided a significant impetus for legislative action. Impoundment 
safety is an integral part of the surface mining regulatory program, as 
it has been from the start. The recent failures of coal ash 
impoundments at power plants operated by the Tennessee Valley Authority 
in Tennessee and Alabama have created a similar impetus for action, 
this time regarding the construction and safety of impoundments at non-
mine sites.
    H.R. 493 assigns three major responsibilities to the Secretary of 
the Interior. First, it requires him to establish a regulatory 
framework for coal ash impoundments, using the provisions of SMCRA 
related to impoundments and waste piles as a foundation. Second, the 
bill requires him to conduct an inventory of existing impoundments, 
including an assessment of the risk they pose to human health and the 
environment. Third, the bill provides the Secretary with the authority 
to issue orders, based on the risk assessment in the inventory, that 
would require existing coal ash impoundments to comply with the new 
regulatory program.
    Implementation of these provisions would require a significant 
commitment of Department resources. This new program would apply not 
just to those areas with coal mining activity but also to a new 
universe of materials and sites beyond active and abandoned coal mine 
sites. As you know, this would be a very significant expansion of OSM's 
authority and scope of responsibilities.
    Additionally, we believe the ambitious six-month timeframe allowed 
for publication of a regulatory program would be difficult to meet. 
Historically, the development and publication of a proposed rule has 
required in excess of one year, to allow for public outreach, 
preparation of supporting documentation, and consultation that may be 
required with agencies such as the U.S. Army Corps of Engineers, the 
U.S. Environmental Protection Agency, and other Federal, state, and 
tribal agencies that may also have statutory and regulatory 
responsibilities related to these impoundments.
    We believe it is appropriate to define more clearly the scope of 
this legislation. Specifically, a more precise definition of ``covered 
wastes,'' should be considered. Neither SMCRA nor its implementing 
regulations define the term ``other wastes'' as used in Section 
515(b)(11) of SMCRA (30 USC 1265(b)(11)). If the intent of H.R. 493 is 
to ensure regulation of all surface impoundment facilities constructed 
of or containing the products of coal combustion, the term ``slag'' 
should be eliminated because it encompasses a broad range of industrial 
waste, not just coal combustion byproducts. Additionally, defining 
``covered wastes'' in a manner consistent with the definition of ``coal 
combustion products'' in ASTM Standard E 2201-02a would ensure the 
appropriate degree of both inclusivity and exclusivity.
    We also believe that the term ``impoundment'' and its definition as 
used in this bill may be unnecessarily confusing. In common usage, the 
term ``impoundment'' refers only to structures holding liquid or semi-
liquid materials. The current definition of ``covered wastes'' also 
includes ``materials stored or disposed of in...solid form.'' The bill 
defines impoundment as ``any dam or embankment used to retain covered 
wastes.'' When these two definitions are read together, the bill could 
be construed as applying to piles constructed of solid coal combustion 
byproducts. The meaning and applicability of the bill would be clearer 
if it were revised to apply to any pile or impoundment constructed for 
the purpose of disposal or long-term storage of coal combustion 
byproducts. We have other technical comments that we would be pleased 
to share with the Committee upon request.
    Mr. Chairman, we look forward to working with the Committee and 
staff in providing our technical expertise on impoundment safety and 
security. I will be happy to address any questions that the Committee 
may have.
                                 ______
                                 
    Mr. Costa. Thank you very much, Mr. Craynon, for your 
timely remarks.
    And our next witness is Mr. Tom FitzGerald. He is the 
Director of the Kentucky Resources Council. And again, the 
device is right there in front of you. And once again, please 
convey to Ms. Gruzesky's family that we wish her the very best 
and a speedy recovery.

            STATEMENT OF TOM FITZGERALD, DIRECTOR, 
                   KENTUCKY RESOURCES COUNCIL

    Mr. FitzGerald. Mr. Chairman, Congressman Rahall, Members 
of the Subcommittee, my name is Tom FitzGerald. I am Director 
of the Kentucky Resources Council, which is a nonprofit 
environmental advocacy organization providing legal and 
technical assistance without charge to low-income individuals, 
to community groups, and to local governments on a range of 
environmental issues.
    It has been some 20 years since I have been in front of a 
Congressional Subcommittee, and I appreciate the invitation to 
be back.
    I always preface my testimony with full disclosures, so 
that you may appropriately discount everything I have to say 
afterwards. My perspective has been forged with 37 years of 
advocacy on coal-related issues, four of them as an 
environmental specialist for Apple Red, which was a legal 
services program in eastern Kentucky, and the past 25 years as 
the Director of the Kentucky Resources Council.
    I represent folks who live downhill, downwind, and 
downstream of coal mining operations, of utility plants, and of 
coal ash impoundments. I have buried one client, who was 
crushed to death when a poorly engineered, and even more poorly 
constructed, 192-foot-high coal waste impoundment collapsed and 
spilled 25 million gallons of slurry into the valley in which 
he lived.
    I am here before you both to express my appreciation to 
Congressman Rahall for his proposed legislation to address the 
under-management of coal combustion waste in impoundments by 
utilities, and also to underscore what the Congressman has 
stated over the years, and most recently in his February 3 
letter, in what the environmental community and my clients 
believe to be the case. It is past time for the U.S. EPA to 
step up to the plate, and propose and adopt a comprehensive 
regulatory framework for the management of coal combustion 
waste, establishing national floors for the characterization, 
management, disposal, and beneficial reuse of the various waste 
streams associated with coal combustion.
    The H.R. 493 is an important vehicle for opening this 
dialogue, by assuring that, as an interim matter, no new 
embankment-type structures for the storage or disposal of coal 
combustion waste will under-manage those wastes in the way that 
TVA did at its Kingston plant.
    By requiring that all new dam or embankment structures for 
coal ash, slag, and flue gas desulphurization materials be 
designed to meet the standards currently applied to coal 
processing waste structures. And by defining the term 
``impoundment'' intentionally, broadly enough to encompass all 
embankment-type structures that retain these wastes, whether in 
a solid, semi-solid, or liquid form, this bill will help avoid 
future catastrophes, such as the failure of the TVA structure.
    That the State of Tennessee had classified that structure 
as a landfill rather than an impoundment underscores the need 
to define both covered waste and impoundments as broadly as 
this bill does.
    H.R. 493 would provide a backstop that would assure that 
new embankment structures containing coal combustion waste meet 
engineering design, location, and construction standards, and 
that existing impoundments be either upgraded or be closed.
    I know the sponsor shares my belief that the regulation of 
these wastes under SMCRA is not the ideal strategy, that it is 
not a surrogate for a comprehensive regulatory framework 
managing all aspects of this growing and increasingly 
problematic waste stream.
    I appreciate this February 3 letter underscoring for the 
new EPA Administrator that it is long past due for EPA to step 
up and do that.
    The savings clause in this bill, at Section 2[g][1], 
expressly recognizes and protects the ability of other 
agencies, acting under other Federal laws, to prohibit the 
construction and operation of these impoundments. And certainly 
KRC believes that the use of water as a mechanism for conveying 
the various wastes from the utility plants should be 
eliminated, and should be replaced by pneumatic and other 
systems for dry collection, management, and storage and 
disposal of these wastes. Wet coal ash management is a matter 
of utility convenience, not necessity.
    And as the TVA released, and scores of less catastrophic, 
but equally problematic, releases have shown, the use of water 
to transport the ash as slurry from the combustion process 
comes at a hidden and significant cost that should be 
internalized and paid by rate-payers, rather than paid by those 
who are downstream.
    Section 2[g][2] also protects the existing state programs 
that apply more stringent standards. I am very confident--and 
if Sandy Gruzesky were here, she would tell you--that Kentucky 
would not have misclassified this impoundment as a landfill.
    As Congressman Rahall has noted on several occasions over 
the years, the hodgepodge, piecemeal regulation of coal 
combustion waste within and among the states, in this area as 
well as in disposal and in the black hole that is called 
beneficial reuse, needs a national framework of minimum 
acceptable standards to protect the public and the environment.
    I have 14 seconds left. Let me just close by suggesting 
that adopting of a program of uniform comprehensive and 
appropriate minimum standards is the best way to assure 
legitimate beneficial reuses of coal combustion waste, or 
expand it and to eliminate sham reuses.
    I have attached two documents for reference, Mr. Chairman. 
One is my testimony before the National Academy of Sciences on 
the co-disposal of coal ash at mines. I know you had a separate 
hearing on that; it is a particularly problematic practice. And 
the second is my suggested technical amendments to H.R. 493.
    And thank you very much for your time. And I cannot believe 
that I actually got in before my time expired.
    [The prepared statement of Mr. FitzGerald follows:]

    Statement of Tom FitzGerald, Kentucky Resources Council, Inc., 
                          Frankfort, Kentucky

    Mr. Chairman, Congressman Rahall, members of the Subcommittee, my 
name is Tom FitzGerald. I am Director of the Kentucky Resources 
Council, Inc., a nonprofit environmental advocacy organization 
providing legal and technical assistance without charge to low-income 
individuals, community groups and local governments on a range of 
environmental issues, from air, waste and water pollution to mineral 
extraction, and energy and utility policy issues. It has been some 
twenty years since I have been before a Congressional subcommittee, and 
I appreciate very much the invitation to be here.
    I always preface my testimony with full disclosure, so that you may 
appropriately discount anything I say afterwards. My perspective has 
been forged through 37 years of advocacy on coal-related issues, four 
of them as an environmental specialist for a legal service program 
representing low-income citizens in the Appalachian coalfields of 
eastern Kentucky, and the past 25 years as Director of the Council. I 
represent folks who live downhill, downwind and downstream of both coal 
mining operations and coal waste impoundments, and who live in the 
shadow of coal-fired power plants and near sites where coal combustion 
waste are disposed. I have buried one client who was crushed to death 
when a poorly-engineered and poorly-constructed 192-foot high coal 
waste impoundment collapsed and spilled 25 million gallons of slurry 
into the valley in which she lived.
    I am here before you both to express my appreciation to Congressman 
Rahall for his proposed legislation to address the undermanagement of 
coal combustion wastes in impoundments by utilities, and also to 
underscore what the Congressman has stated over the years and what the 
environmental community and my clients believe to be the case--it is 
far past time for the U.S. Environmental Protection Agency to propose 
and adopt a comprehensive regulatory framework for management of coal 
combustion wastes establishing a national floor of standards for the 
characterization, management, disposal and beneficial reuse of the 
various wastestreams associated with coal combustion--fly ash, scrubber 
sludge, and bottom ash.
    The Coal Ash Reclamation, Environment, and Safety Act of 2009 is an 
important vehicle for opening this dialogue by assuring that, as an 
interim step, no new embankment-type structures for storage or disposal 
of coal combustion wastes will undermanage coal combustion wastes in 
the manner that the TVA did at the Kingston Plant. By requiring that 
all new dam or embankment structures for coal ash, slag, and flue gas 
desulfurization materials be designed to meet the requirements 
currently applicable to coal processing waste structures, and by 
defining the term ``impoundment'' broadly enough to encompass all 
embankment-type structures that retain these wastes whether in a solid, 
semi-solid, or liquid form, the bill will help avoid future 
catastrophes such as the failure of the TVA structure. That the TVA 
structure that failed was classified under Tennessee state regulations 
as a landfill rather than an a dam or impoundment, underscores the need 
to define the terms ``covered wastes'' and ``impoundments'' as H.R. 493 
does, and is one of numerous examples of the undermanagement of coal 
combustion wastes under the hodgepodge of state regulatory programs 
that have developed in the vacuum created by the absence of EPA's 
leadership. H.R. 493 would provide a backstop that would assure that 
new embankment structures retaining coal combustion wastes meet 
engineering, design, construction, and location standards for any new 
impoundments or landfill units retaining coal combustion wastes that 
are built above grade.
    The bill attempts to address the problem of pre-existing 
impoundments, requiring that they be inventoried and assessed, and 
authorizing the Secretary of the Interior to require that they be 
upgraded or closed depending on the risks posed. I do have several 
suggested changes to H.R. 493 with respect to pre-existing 
impoundments, and would suggest that they be handled in a manner 
similar to other pre-existing facilities regulated under SMCRA--by 
requiring that the facilities be dewatered and closed unless the owner 
can demonstrate that the existing structure meets the performance 
standards applicable to the embankment structure, that it would have to 
be closed or reconstructed to meet both the performance and design 
standards.
    I know that the sponsor shares my belief that regulation of these 
wastes under SMCRA is not the ideal strategy, and that it is not a 
surrogate for a comprehensive regulatory framework managing all aspects 
of this growing and increasingly problematic waste stream. The savings 
clause provisions in H.R. 493, Section 2(g)(1), expressly recognizes 
and protects both the ability of other federal agencies acting under 
other federal laws to prohibit the construction or operation of 
impoundments for the storage or disposal of coal combustion wastes, and 
certainly, KRC believes that the use of water as a mechanism for 
conveyance of the various coal combustion wastes should be replaced by 
pneumatic or other systems for dry collection, management and 
legitimate reuse or disposal. Wet coal ash management is a matter of 
utility convenience rather than engineering necessity, and as the TVA 
release and the scores of less catastrophic releases into soil, surface 
and groundwater demonstrate, using water to evacuate the ash as slurry 
from the combustion process comes at a hidden and significant cost that 
should be internalized and paid by ratepayers rather than in the form 
of damage to private and public land and water resources.
    Section 2(g)(2) also protects existing state programs that impose 
standards equivalent to or more rigorous than those that would be 
adopted under H.R. 493. In Kentucky, I am very confident that the TVA 
structure would have been called what it was--a high hazard potential 
dam--and would have been regulated and inspected more vigorously than 
was the case
    As Congressman Rahall has noted on several occasions over the 
years, the hodgepodge, piecemeal regulation of coal combustion wastes 
among and within the states must be addressed by the adoption of a 
comprehensive regulatory framework by the U.S. Environmental Protection 
Agency. This measure is not inconsistent with that goal, and we can all 
hope that EPA will move forward expeditiously on this issue. As one of 
a score or more of states that have established state policies of being 
``no more stringent than'' federal minimum standards, residents in 
Kentucky have looked in vain to EPA to finish the job they committed to 
do in 1988 and again in 2000.
    Absent federal intervention to establish appropriate regulatory 
benchmarks for characterization and management of the wastes based on 
their intended end use or disposal, the competitive forces of the coal 
and electric utility marketplace will continue to result in a parochial 
failure of the individual states to effectively control the disposal of 
CCW. It will also encourage a practice that is of particular concern to 
me as an advocate assisting coalfield groups across the nation on coal-
related issues, which is the indiscriminate blending of fly ash in mine 
backfill or disposal in active or abandoned mine workings or pits.
    What is known concerning the potential toxicity of the leachate 
from coal combustion ash suggests that a general federal floor of 
management standards is needed, particularly when considering disposal 
or use of such wastes in the highly fractured, geologically disturbed 
and hydrologically transmissive environment of active or abandoned mine 
workings.
    The 1988 EPA determination that coal combustion wastes need not be 
regulated under RCRA Subpart C as hazardous, was predicated on the 
assumption that mitigative measures under RCRA Subpart D such as 
installation of liners, leachate collection systems, and ground-water 
monitoring systems and corrective action to clean up ground-water 
contamination, would be employed for protecting public health and the 
environment. The failure of EPA to require such measures has harmed 
both. In light of the increasing evidence that the management of CCW as 
a solid waste has resulted in damage to land and water resources and 
presents a localized and significant threat to public health, 
regulation under Subpart C for some coal combustion wastes should be 
revisited.
    The Office of Surface Mining has been developing a regulation that 
would facilitate co-disposal of coal combustion wastes at mines, but 
OSM's authority under SMCRA is not sufficient, standing alone, to 
assure proper management of coal mine co-disposal, and was never 
intended by Congress to supplant EPA's primary and non-delegable 
responsibility under RCRA to assure proper management of such wastes. 
As improvements continue to be achieved in both pre- and post-
combustion scrubbing and capture of particulates and metals, we will of 
necessity change the composition and increase the potential toxicity of 
the flay ash and leachate, and generate significant volumes of scrubber 
sludges that need to be managed in order to protect public health and 
the environment.
    In some states, coal combustion wastes are being backhauled and 
disposed, or ``beneficially reused,'' in mine workings (including both 
underground mine voids and more commonly, in surface mine backfills or 
spoil/mine waste fills) not because of the inherently beneficial or 
desirable attributes of the wastes relative to other backfill 
materials, or the lack of alternative locations available to utilities 
and non-utility customers for coal combustion waste disposal. Rather, 
such use and disposal is occurring largely because the coal companies 
offer the backhauling and disposal as a ``service'' or incentive in 
order to attract buyers for their coal in an increasingly competitive 
marketplace, offering the ultimate ``out of sight, out of mind'' 
solution to the generation of the coal combustion waste.
    The proper management of CCW is essential for protection of human 
health and the environment. Adequate and comprehensive safeguards will 
prevent trafficking in environmental contamination by removing the 
incentive for those more interested in currying market share and short-
term economic gain rather than the long-term public interest to 
undermanage the wastes. Adoption of a program of uniform, comprehensive 
and appropriate minimum standards for the characterization and 
management of coal combustion wastes for reuse and disposal is the best 
way to improve the legitimate beneficial utilization of CCW, while 
eliminating sham beneficial reuses.
    Mr. Chairman, Congressman Rahall, members of the Subcommittee, that 
concludes my prepared testimony. I have attached two documents for 
reference, the first being my testimony to the National Academy of 
Sciences concerning co-disposal of coal combustion wastes at mines, and 
the second, my suggested amendments to H.R. 493. I would be happy to 
answer any questions, and appreciate very much your interest in this 
important issue, and the opportunity to return to D.C. and to have this 
conversation.
                                 ______
                                 

                    Suggested Amendments To H.R. 493

    On P. 2, Line 13, insert ``most stringent'' after ``with'' in order 
to direct the agency to use the most rigorous standards applicable to 
permanent impoundments rather than the less stringent standards that 
apply to temporary impoundments and sedimentation ponds.
    On P. 3, Line 6, replace ``deposit and maintenance'' with ``storage 
and disposal'' in order to assure that both temporary impoundments and 
impoundments used for treatment are covered, as well as disposal 
facilities. The same change would be made on P. 3 Lines 15-16 and 21.
    On P. 3 Lines 24-25 and P. 4, Lines 1-2, remove ``basin 
characterization'' and replace it with ``assessment of the location, 
design and construction to assure the safety and stability of the 
impounding structure and basin''.
    On P. 3, Lines 12-17, amend the text as follows:
    (e) EXISTING IMPOUNDMENTS.--
    (1) LIMITATION ON APPLICATION.--Except as provided in an order 
under this subsection, the design and construction requirements of the 
regulations promulgated under subsection (a) and subsections (c) and 
(d) shall not apply to an impoundment for the storage or disposal of 
other wastes existing prior to the promulgation of the regulations; 
provided that the impoundment meets all performance standards 
established under the regulations, and an ``as built'' certification is 
provided from a registered professional engineer certifying that the 
impoundment meets those requirements and is constructed in a manner 
that is safe and will effectively perform the intended function without 
failure.
    On P. 4, Lines 9-14, replace the current language on Lines 9-14 
with the following:
    3) ORDERS.--Based on the assessments and the determination of 
degree of risk under paragraph (2), and notwithstanding the compliance 
of the owner or operator of the impoundment with performance standards 
or the ``as built'' certification required under this Section, the 
Secretary may issue any order for repair, construction, or closure of 
the impoundment necessary to ensure that any such impoundment is safe 
and effectively performs the intended function
    [NOTE: The testimony to the National Academy of Sciences concerning 
co-disposal of coal combustion wastes at mines has been retained in the 
Committee's official files.]
                                 ______
                                 
    Mr. Costa. You did a very good job. And without objection, 
we will submit both documents for the record. And we look 
forward to the question-and-answer period.
    Next is a gentleman who I had the pleasure to meet before 
the hearing Mr. Davitt McAteer, whose knowledge and expertise 
and respect is well known, not just in West Virginia, but 
throughout his area of expertise. And if the Chairman believes 
that he comes highly recommended, I believe he comes highly 
recommended.
    Mr. Davitt McAteer, Vice President of Sponsored Programs at 
Wheeling Jesuit University, you are on.

   STATEMENT OF DAVITT McATEER, VICE PRESIDENT FOR SPONSORED 
 PROGRAMS, CEO OF THE CENTER FOR EDUCATIONAL TECHNOLOGIES AND 
NATIONAL TECHNOLOGY TRANSFER CENTER, WHEELING JESUIT UNIVERSITY

    Mr. McAteer. Good morning, Chairman Rahall, Chairman Costa, 
Ranking Member Lamborn, and distinguished Members of the 
Subcommittee on Energy and Mineral Resources of the Natural 
Resources Committee.
    As mentioned, I am Davitt McAteer, Vice President of 
Wheeling Jesuit University. I am here to offer four points.
    Coal ash impoundments are not unlike coal waste 
impoundments in that they are products produced as a result of 
processing coal. In 1972, as was mentioned, a Buffalo Creek 
impoundment failed, and 127 persons were killed, and thousands 
of homes destroyed.
    As a result, Federal and West Virginia state agency, the 
government adopted regulations controlling the design, 
building, and maintenance of impoundments of coal.
    On October 11, 2000, a coal impoundment dam failed through 
the bottom in Martin County, Kentucky, releasing 300 million 
gallons of sludge. While no one was killed, the ecosystem was 
destroyed for nearly 100 miles.
    I was the Assistant Secretary for the Mine Safety and 
Health Administration, one of the agencies responsible for the 
safety and security of these impoundments, and sadly must admit 
that we had not been sufficiently proactive in learning from 
the warning signs of impoundment failures that occurred at 
Martin County, not unlike the situation we have today at the 
Kingston, Tennessee facility.
    Following that failure, Sen. Byrd and Congressman Hal 
Rodgers from Kentucky asked the National Academies of Science 
to study the issue of coal impoundments, and they produced a 
report, ``Coal Waste Impoundment Risks and Responses, As Well 
As Alternatives,'' in 2002.
    In 2003, with the help of Sen. Byrd, we established a coal 
impoundment program at Wheeling Jesuit University, with the 
purpose of addressing surrounding coal impoundments, and also 
addressing lessons learned in the disaster, including one 
fundamental conclusion. After Martin County, what we learned 
was that the people who needed to know the most about these 
impoundments, those living downstream, knew the least about 
them.
    The lessons learned from those experiences might prove 
useful to this Committee, as it addresses the questions before 
it.
    I have a series of slides here to show what we have done at 
the coal impoundment project. We have mapped the impoundment 
locations across the country; there are roughly 500 such 
impoundments. And in West Virginia, which requires that 
emergency evacuation plans are required for impoundments, that 
can impact families and property.
    At high-hazard dams, each----
    Mr. Costa. Excuse me, Mr. McAteer. I just want to make sure 
Members have the PowerPoint here, because that is a little 
difficult to see. I believe it is in your handout; and if not, 
we will make sure we get it to you.
    You are on the second page now?
    Mr. McAteer. I am on the second page now.
    Mr. Costa. All right, very good. Thank you. Please proceed. 
That is on my time. Go ahead. Thank you.
    Mr. McAteer. This mapping consists of identifying the 
impoundments using GPS satellite imagery so that you can, in 
fact, identify the impoundment that is above your house, and 
identify your house and where you are located. Also understand 
what the emergency evacuation plan, should a problem occur.
    Our thinking is to put together a package for individuals 
who have a Sunday night heavy rainstorm, they are concerned 
about it, and who should they contact.
    Then we conduct field studies as to the public health 
impact of the impoundment runoff. We analyze the chemical and 
mineral constitution of the slurry impoundments in spills that 
occur at impoundments. This is an impoundment that slurry 
spilled, and we take samples and analyze that.
    One of the shortcomings of the coal waste impoundment 
program is that it does not have the analysis of the materials 
going into the impoundments, so we are at a loss to know what 
is in there, and we have to take samples of when we have that 
impoundment come out.
    Then we do a tabletop exercise. And this is where we have 
emergency management officials come together with company 
officials from the mine, officials from the state and Federal 
agencies, as well as citizens; and they study the emergency 
evacuation plans, and we give them a hypothetical problem.
    Then we look at impoundment instrumentation and monitoring. 
One of the things we found is that the use of impoundments is a 
rather primitive tool that we simply dump over the hill, in 
effect. That is not always the case, but generally it is, and 
we wanted to try to improve the technology as part of the 
efforts to try to look at new technologies that can give us 
more information, and can provide us with better protection.
    We do biological studies and the impoundment remediation. 
There are some efforts to do remediation where we can, in fact, 
take the impounded material, and reduce its presence by using 
bacteria that eats some of the impoundment. We are looking at 
that.
    We conduct research on instrumentation and monitoring. And 
the driving philosophy of our program is an attempt to educate 
and improve safety and health for citizens living near the 
impoundment, to improve proactive spill prevention by 
impoundment operators monitoring the instance. We put up 
instances of failures, instances of spills--and they have the 
positive effect of involving the mine operator, the impoundment 
operator, in ensuring that his name doesn't go to the top of 
the list.
    And finally, we apply technologies to current impoundment 
sites and try to improve their design and maintenance.
    The current coal combustion residue, fly ash, should be 
regulated by strong Federal and state systems which apply 
comprehensive location design, operations, maintenance and 
closure procedures.
    The disposal of fly ash in dry-disposal facilities should 
be required because of the human and environmental safety 
advantages. Research and technologies which encourage 
beneficial use of CCR also must be increased, and emergency 
preparedness in the event of failure should be included to 
protect the citizens who live down the stream.
    CCR is a large and growing problem, not only in this 
country but throughout the world. The creation of coal 
combustion waste, if left unanswered, will result in disaster, 
like in the Kingston failure. The comprehensive approach 
utilizing OSM, EPA, and then my suggestion, MSHA, might provide 
the best model for addressing this problem in a timely way.
    Mr. Chairman, thank you very much.
    [The prepared statement of Mr. McAteer follows:]

            Statement of J. Davitt McAteer, Vice President, 
                       Wheeling Jesuit University

    Good Morning, Chairman Rahall, Chairman Costa, and distinguished 
Members of the Subcommittee on Energy and Mineral Resources. My name is 
Davitt McAteer and I wish to thank you for this opportunity to appear 
before you today. I am the Vice President of Sponsored Programs at 
Wheeling Jesuit University where I am responsible for research efforts 
at the National Technology Transfer Center (NTTC) and Center for 
Educational Technologies (CET).
    On December 22, 2008, a Coal Ash Impoundment operated by the 
Tennessee Valley Authority ruptured and sent a billion gallons of 
sludge across 300 acres of Eastern Tennessee (New York Times, January 
6, 2009). This facility is one of more than 600 Coal Combustion Waste 
sites across the United States. Of that number, it is estimated that 
300 are impoundments and 300 are landfills used by 440 coal-fired 
utilities. (EPA Estimate / Notice of Data Availability on the Disposal 
of Coal Combustion Wastes in Landfills and Surface Impoundments, Docket 
# EPA-HQ-RCRA-2006-0796-0015).
    Currently approximately 129 million tons of coal combustion 
residues are produced annually and this number is expected to increase 
dramatically in the coming years. (Annual Energy Outlook, 2007 Energy 
Information Administration and Department of Energy Report No. 0383/
2007). Besides the safety considerations surrounding the methods of 
disposal, health concerns also exist. Since 1999, the EPA has issued a 
number of reports warning about substantial risk to human health and to 
the environment from poorly managed coal ash disposal facilities. (U.S. 
EPA (Environmental Protection Agency). 2007. Coal Combustion Waste 
Damage Case Assessments. (Available from the docket to the Notice of 
Data Availability on the Disposal of Coal Combustion Wastes in 
Landfills and Surface Impoundments, Docket # EPA-HQ-RCRA-2006-0796-
0015).
    I first would like to commend this Committee and Chairman Rahall 
for their leadership in acting swiftly to address this growing problem.
    Coal ash is presently disposed of in wet or dry impoundments or 
piles. These impoundments are not unlike coal impoundments which are 
facilities built of coal waste produced at mines during the cleaning 
and preparation of the coal before burning. These ``coal impoundments'' 
typically consist of rock, coal fines, clay and other impurities which 
are placed across a valley creating an impoundment. These impoundments 
provide a permanent storage place for the waste materials and equally, 
if not more important to the coal operator, a ready supply of cheap 
water which the mine uses to clean the newly produced coal. Tragically, 
one of these impoundments collapsed in 1972 in Buffalo Creek, West 
Virginia, killing 127 people and destroying hundreds of homes and 
structures. Following that disaster, the Federal government and the 
state of West Virginia adopted new regulations governing the 
construction, design and management for such impoundments. More 
recently on October 11, 2000 in Martin County, Kentucky an impoundment 
operated by the Massey Energy Company failed through the impoundment 
bottom. The slurry then broke through two underground mine seals 
discharging approximately 300 million gallons of coal slurry and water 
sludge into the creeks and rivers of West Virginia and Kentucky. 
Following the disaster, at the request of Senator Robert C. Byrd and 
Congressman Nick J. Rahall, II, the National Academy of Sciences, 
National Research Council, undertook a study of coal waste 
impoundments. Their report was released in 2002. Coal Waste 
Impoundments: Risks, Responses, and Alternatives; Committee on Coal 
Waste Impoundments, Committee on Earth Resources, Board on Earth 
Sciences and Resources, National Research Council, 244 pages, 2002. 
While no one was killed, EPA called the collapse the largest 
environmental disaster in the south eastern portion of the United 
States. That is until the release of the TVA Kingston, Tennessee 
facility on December 22, 2008.
    Coal waste impoundments have caused concern and fear among coal 
field residents for a number of years, at least since Buffalo Creek. 
The failure at Martin County led to renewed concerns. In order to 
address the issues surrounding coal impoundments, in June, 2003, with 
the help of Senator Robert C. Byrd, we established the Coal Impoundment 
Project at Wheeling Jesuit University's National Technology Transfer 
Center and Center for Educational Technologies 
(www.coalimpoundment.org).
    The Coal Impoundment Project grew out of the knowledge gained from 
the Martin County failure, that the people who need to know the most 
about the impoundments--those living downstream--knew the least about 
them. Moreover, the project is an effort to address several issues 
relating to coal waste disposal, including providing information to 
citizens about impoundments improving safety precautions and conducting 
research to improve impoundment safety and security.
    These investigations have included testing filtration materials, 
testing automatic wireless instrumentation for monitoring the dam 
conditions, and the use of robots for remote underground mine mapping 
under impoundments. Current research includes investigating hand-held 
computers with Global Positioning Systems, cameras, and audio recording 
to assist field inspectors with recording information and the ability 
to automatically upload information to a centralized electronic record 
center. This technology could improve impoundment inspections, 
management of the site, engineering oversight, regulatory compliance, 
and safer conditions for workers and nearby communities.
    The project also includes efforts to research new technologies to 
reduce the amount of impounded materials and to reduce the need for the 
use of this method of disposal by researching beneficial uses for the 
material.
    The December, 2008 TVA ash impoundment failure thus has a certain 
ring of history repeating itself and perhaps we can learn from the coal 
impoundment experience.
    The guiding philosophy of the Wheeling Jesuit University Coal 
Impoundment Program is that better information shared in a coordinated 
way will help reduce anxiety among coal impoundment neighbors and 
timely information about incidents/leaks will help responsible parties 
to react in a more expeditious fashion to minimize risks and improve 
spill prevention.
    One important aspect of the program is the identification of coal 
impoundments, mapping their locations and making emergency evacuation 
plans, which are required in West Virginia, publically available. Thru 
a series of public meetings, citizens in the coalfields have been 
alerted to the locations of nearby impoundments and several communities 
have begun to work with local officials to improve notification in case 
of an emergency, for example, using reverse 911, and to improve the 
emergency evacuation plans.
    In addition, we have initiated table top exercises and information 
exchanges with state and federal agencies, county emergency management 
personnel and coal company officials which have improved preparedness 
and emergency planning.
    It seems clear from the Tennessee incident and a second event in 
Alabama on January 9, 2009, the failure of voluntary industry efforts 
and inadequate state by state regulatory efforts that coal ash disposal 
facilities need strong federal regulations. Furthermore, that 
regulating scheme needs to be multifaceted given the nature of the 
problem.
    As the 2006 National Research Council of the National Academy of 
Sciences, Managing Coal Combustion Residues in Mines report concludes, 
a strong regulatory approach involving both the Department of the 
Interior Office of Surface Mining (OSM) and the Environmental 
Protection Agency (EPA) would seem to be the most logical approach 
given the multiple risks created by the different methods of coal ash 
waste disposal. OSM under Surface Mine Control & Reclamation Act, 30 
USC Sec. 1201 et seq., (SMCRA) has the regulatory framework in place to 
deal with the coal combustion residue placed in mine sites, and EPA, as 
it had planned to do in 2000, should promulgate regulations covering 
CCR disposal in landfills under the Resource Conservation and Recovery 
Act (RCRA)(65 CRF Sec. 32214). I would add that involving MSHA in plan 
application approval and inspector training discussed below could 
expedite the program. While joint regulatory schemes commonly suffer 
from a lack of clear jurisdiction, given the nature of this problem 
such a joint approach seems best suited to quickly address this problem 
(The NRC Committee also noted that a number of public interest groups 
had expressed concern that OSM and other SMCRA related agencies lacked 
the will or ability to deal effectively with this issue; perhaps the 
joint approach would improve the confidence of the public).
    It also should be noted that coal ash impoundments are more like 
coal impoundments than standard dams, and require different engineering 
and monitoring approaches. Inspection methods, training, and record 
keeping techniques need to be specific for these unique facilities. 
This conclusion is the result of analyzing MSHA's experience with coal 
impoundments. While standard dams once built are typically static 
facilities with few variables, coal impoundments and Coal Combustion 
Residue impoundments are dynamic facilities which have more variables 
as they are constantly changing, receiving additional materials, etc. 
Thus, the CCR disposed of at mine sites and impoundments should draw 
upon MSHA's experience. (See Appendix A, MSHA Impoundment Data Form)
    These facilities require frequent monitoring and inspections by the 
responsible owner and/or operator as well as federal and state agency 
inspectors. For example, currently, under the Federal Mine Safety & 
Health Act of 1977, 30 USC Sec. 813 et seq. coal impoundments are 
inspected quarterly by MSHA inspectors and every seven days by company 
personnel trained by MSHA. Inspection reports are required to be kept 
and filed with MSHA.
    Coal Impoundment incidents, failures, and spills are also required 
to be reported and investigated, and a protocol is in place to be 
followed if a serious incident is observed, involving higher up company 
and government officials--a procedure, which it is reported, did not 
exist at the Kingston, Tennessee, December 22, 2008 failure site. These 
reported incidents are also included in the WJU website (http://
www.coalimpoundment.org). Such reporting has resulted in owners and 
operators being proactive in preventing and avoiding incidents, as well 
as keeping the public informed about the number and severity of those 
incidents should any occur.
    One aspect of the West Virginia regulatory program--the creation by 
impoundment operators of Emergency Action Plans is an area where the 
proposed H.R. 493 could be strengthened. These plans are required when 
impoundments have the potential for negatively impacting people and 
homes and are ranked as ``High Hazard Dams.''
    One area which MSHA Coal Impoundment Regulations do not adequately 
cover but which should be of concern for coal combustion residue 
facilities is the monitoring of chemicals and heavy metals that go into 
and come out of the facilities. The collection of impurities and 
harmful materials during the burning of coal to avoid releasing them 
into the atmosphere produces the fly ash and bottom ash waste products 
which may have a high concentration of those impurities. Given the 
nature of the waste it is only logical that monitoring the make up of 
the material being placed in the facilities as well as monitoring any 
discharge from the facility through leaching, drainage and/or runoff is 
essential to protecting human health and the environment. In our 
experience, this lack of knowledge as to the makeup of coal impounded 
material--what is in the impoundment--has been recognized as a drawback 
in the ability of the owner and operator as well as the federal or 
state agencies to adequately treat runoff or drainage products.
    The use of ``mine sites'' as disposal facilities for CCR raises 
additional potential concerns as well as additional potential benefits 
in assessing options the disposal sites. As the National Research 
Council concluded in its Managing Coal Combustion Residue in Mines (NAS 
2006) report, putting CCR's in coal mines as part of the reclamation 
process is a viable management option as long as (1) CCR placement is 
properly planned and is carried out in a manner that avoids significant 
adverse environmental and health impacts and (2) the regulatory process 
for issuing permits includes clear provisions for public involvement 
(p. 1, Summary 2006).
    Mining operations frequently disrupt the rock formation below the 
coal seam allowing ground water pollution from CCR deposited on mine 
sites easier access to ground water aquifers. Also underground mine 
site locations are frequently below the water table where leachates can 
contaminate the water table.
    In our studies of runoff at coal impoundments, we have encountered 
water contamination that appears to be connected to the coal 
impoundment leaching, drainage and runoff. The National Academy of 
Sciences expressed just such a concern in their 2006 study. According 
to NAS, ``A review of 24 proven CCR landfill damage cases reveals one 
commonality among the incidents: when CCRs react with water and the 
resulting leachate is not contained, adverse consequences can 
result....In some landfill settings, groundwater has been degraded to 
the point that drinking water standards were exceeded off-site. In 
other landfills and surface impoundments, contamination of surface 
waters has resulted in considerable environmental impacts....The 
committee concluded that the presence of high levels of some 
contaminants in CCR leachates may create human health and ecological 
concerns at or near some mine sites over the long term,'' indicating 
the need for long term monitoring of ground and surface waters at such 
sites.
    Further, a draft EPA report measuring the health risks posed by 
disposal practices at coal ash dumps finds that pollution from these 
sites significantly increases both cancer and noncancer health risks 
and degrades water quality in groundwater supplies. (RTI (Research 
Triangle Park) 2007. Human and Ecological Risk Assessment of Coal 
Combustion Wastes, Draft Prepared for: U.S. Environmental Protection 
Agency, Office of Solid Waste.
    Other concerns exist about the long term impact of mine site 
disposal and storage. West Virginia's Department of Environmental 
Protection director, Randy Huffman testified as recently as Tuesday, 
February 10, 2009, that WV DEP remains concerned about the negative 
impact on water supplies from injecting coal mine slurry into 
underground mines and wells (Charleston Gazette, February 11, 2009).
    Analysis of the recent fly ash dam failure in Tennessee resulted in 
contamination of waterways with arsenic and radium. A Duke University 
report concluded ``exposure to radium and arsenic containing particles 
in the ash could have severe health implications in the affected 
area.'' (Duke University press release, January 30, 2009). And although 
the report found only trace elements beyond the damned tributary, all 
studies support the conclusion that special care must be taken in the 
design management and operation of fly ash facilities to ensure 
environmental and human safety and health protections at CCR 
facilities.
    In the 36 years since Buffalo Creek, MSHA has gained much knowledge 
and experience in what is good design and management for coal 
impoundments and this knowledge should serve as a tool for future CCR 
sites. Moreover, a best practices approach to operation management of 
CCR's should be part of the approaches considered here. The Coal 
Impoundment Project has developed a pilot best practices program and 
recommends the implementation of a tailings management framework 
consisting of Operation, Maintenance, and Surveillance programs for the 
integration of environmental and safety considerations into each stage 
of the life cycle of a tailings facility, from initial site selection 
and design, through construction and operation, to eventual 
decommissioning and closure. The future of coal ash facilities should 
include the integration of environmental and safety considerations in a 
consistent way for the continuous improvement of the facilities.
    Applicants for CCR sites should not only examine the 
characteristics of the location to be used but also the chemical and 
physical properties of the materials to be deposited. Facility 
management must include the studies of short term and long term impact 
such facilities have on the ecosystem as well as any adverse human 
impact and should include regular and thorough monitoring of the ground 
and surface waters around, below and downstream of the disposal site.
    In addition, as is the case with Coal Impoundment sites, the 
federal regulations must ensure that the owner/operator must be 
sufficiently financially sound to be able to abate adverse effects to 
humans and the environment should such harmful impacts occur. 
Currently, performance bonds are required of coal impoundment owners/
operators, and it is reasonable that bonds should be required for fly 
ash disposal sites as well. And as is the case under other 
environmental regulations, the handling and storage of coal combustion 
waste should remain the responsibilities of the generator unless the 
product is sold for beneficial use.
    Currently, MSHA and OSM jointly coordinate and approve Coal 
Impoundment plans and applications. One suggestion for this Committee 
is that MSHA be authorized to assist in CCR impoundment plan approvals 
and that MSHA training be provided for OSM and EPA CCR impoundment 
inspections.
    An additional point raised by the EPA and others is the use of wet 
versus dry facilities. That same debate exists with regard to coal 
refuse impoundments. Clearly, the dry disposal methods have significant 
safety and environmental advantages, although typically more costly to 
operate than wet disposal. This Committee should consider a phased in 
approach limiting and/or restricting the wet disposal method in favor 
of the dry technique, ultimately dry storage is the preferred method in 
most situations.
    Furthermore, we much continue to apply new technologies to reduce 
the amount of CCR created. Recently, professors at Virginia Polytechnic 
Institute and State University (Virginia Tech) reported that progress 
continues to be made in developing an economically viable technology to 
remove water from even the ultrafine coal slurries. (Virginia Tech News 
Release, February 9, 2009). Technologies such as these should be 
applied to the disposal of coal ash and thus help reduce the amount of 
ash residue created.
    Where permitted, future ash lagoons should be developed so as to 
provide secure containment while allowing the ash to eventually dry and 
solidify. Such facilities should include the use of composite liners 
which have a number of advantages and are required for industrial waste 
facilities and adequate monitoring of ground and surface waters to 
assure success of the liners, or to avoid accidental harm due to 
unanticipated breaches of the liner system.
    In conducting our research we also examined regulations of CCR's in 
other countries, the European Union (EU) recently required a registry 
for fly ash products placed on the market as construction material. On 
June 1, 2007, the REACH-Regulation (Registration, Authorization, 
Evaluation and Restriction of Chemicals) of the European Union required 
that each producer or importer of coal combustion products (CCPs) which 
were to be placed in the market as construction materials have to pre-
register and register their substances. The pre-registration requires 
information on the substance identity, the tonnages and the name and 
address of the producer. The registration requires comprehensive 
information about toxicology and ecotoxicology of the substances. Among 
other benefits to industrial repurposing of fly ash, this registry 
provides important information for the protection of human health and 
drinking water when deciding how and where fly ash can be used 
beneficially. (Feuerborn, J. 2008. EU and CCP: Coal Combustion Products 
and REACH. ECOBA (European Coal Combustion Products Association), 2008. 
http://www.ecoba.com/news,document.html?id=274)
    In closing, I believe the creation of this enormous amount of 
material (CCR) for which no beneficial uses have been found is a 
problem which must be addressed. Beneficial and safe uses of CCR in 
drywall, concrete, road building, construction fill and other areas 
should be encouraged and additional safe uses should be developed.
    Electricity from coal is a necessary fact of our lives today. 
Combustion is the means of converting coal to electricity and ash 
resulting from that combustion is important in preventing impurities 
and hazardous materials from entering the atmosphere. In effect, in 
solving one problem, we have created another for which we need to find 
a better safer and healthier method of disposal. This bill and this 
Committee's efforts are major steps in the right direction.
    The need to solve this problem has been recognized by the National 
Academy of Sciences National Research Council and the Environmental 
Protection Agency. The result of the recent failures in Tennessee and 
Alabama along with the EPA and NAS NRC studies and our experiences with 
coal impoundments, have made us aware of the negative consequences of 
failing to act.
    Mr. Chairman, Members of the Subcommittee, a comprehensive federal 
program under EPA & OSM's joint jurisdiction with assistance from MSHA 
appears to be the most logical approach and most effective in 
addressing the risks and concerns of coal combustion waste disposal.
    Finally, on behalf of Wheeling Jesuit University our Coal 
Impoundment Project group and myself, I would like to thank the 
Subcommittee for the opportunity to address this problem which, because 
of its size alone presents difficult financial and logistic hurdles, 
but also because of the combined human and environmental concerns 
present large health, safety and environmental issues. Thank you also, 
Chairman, for the opportunity to present to you and the Subcommittee, 
information about this important issue.
    [NOTE: Attachments have been retained in the Committee's official 
files.]
                                 ______
                                 
    Mr. Costa. Thank you, Mr. McAteer. We appreciate that.
    As we proceed to our last witness, certainly last but not 
least, I would first like to ask unanimous consent that Ms. 
Gruzesky's written statement be included into the hearing 
record today. And she is here in spirit.
    Hearing no objection, we will have her statement entered 
into the record.
    [The statement submitted for the record by Ms. Gruzesky 
follows:]

                     ENERGY AND ENVIRONMENT CABINET

                Department for Environmental Protection

                           300 Fair Oaks Lane

                       Frankfort, Kentucky 40601

                         Phone: (502) 564-2150

                          Fax: (502) 564-4245

                             www.dep.ky.gov

                           February 10, 2009

U.S. Representative Jim Costa, Chairman
Subcommittee on Energy and Mineral Resources
1324 Longworth House Office Building
Washington, DC 20515-0520

Re:  Hearing on H.R. 493, the Coal Ash Reclamation, Environment, and 
Safety Act of 2009

Dear Chairman Costa,

    Thank you for this opportunity for the Commonwealth of Kentucky to 
share its experience and perspective regarding the regulation of coal 
ash impoundments. As you know, Kentucky is a coal mining state that 
relies heavily on coal-fired power plants for its energy production. A 
2006 study by the U.S. Department of Energy and U.S. Environmental 
Protection Agency states that Kentucky leads the nation in coal ash 
production, producing approximately 14.5 million tons in 2004. 
Nationally, and in Kentucky, approximately 70 percent of the material 
is handled as a dry waste while the remainder is handled in a wet form. 
Safe and effective management of this material must remain a priority 
in order to protect the Commonwealth's natural resources and the health 
and safety of its citizens.
    Kentucky has statutes and regulations that were developed to 
protect the environment, and public safety and health from potential 
threats associated with the management and disposal of coal combustion 
waste. The regulatory requirements are implemented by Kentucky's 
Department for Environmental Protection, which is part of the Energy 
and Environment Cabinet. Within the Department for Environmental 
Protection, the Division of Waste Management is responsible for 
regulating the ultimate disposal in a landfill, or beneficial reuse of 
coal ash material, while the Division of Water is responsible for 
regulating the design, construction and inspection of coal ash 
impoundment dams, as well as the discharge of pollutants to surface 
water or ground water. Some of the risks associated with coal ash 
management and disposal are catastrophic in nature, as in the case of a 
dam failure, while other risks are more chronic in nature, such as the 
potential impact to human health and the environment from exposure of 
toxic pollutants originating in the material. I understand that the 
interest of the Subcommittee on Energy and Mineral Resources is the 
potential catastrophic risks of a structural failure of an impoundment, 
therefore my comments will focus on these aspects of Kentucky's 
regulations.
    Since approximately 1975, Kentucky has regulated ash ponds that 
have an embankment in the same manner as we regulate any dam. The 
Division of Water implements a dam safety program, and we have many 
years of experience permitting and inspecting these structures. As 
director of the Division of Water, the Dam Safety Program is under my 
supervision. There are 967 active dams in Kentucky that the Division 
inspects. This inventory does not include coal slurry impoundments, 
which are subject to the Surface Mining Control and Reclamation Act 
(SMCRA) and are regulated by Kentucky's Department for Natural 
Resources, also within the Energy and Environment Cabinet.
    A dam is defined by KRS 151 as any structure that is 25 feet in 
height, measured from the downstream toe to the crest of the dam, or 
has a maximum impounding capacity of 50 acre-feet or more at the top of 
the structure. Structures that fail to meet these criteria, but that 
have the potential to cause significant property damage or pose a 
threat to life in the downstream area are regulated in the same manner 
as dams. Of the 967 dams within the division's inventory, 18 are coal 
ash impoundments and 11 of those are identified as high-hazard or 
moderate-hazard dams. The hazard classification is based on potential 
impacts if the dam were to fail according to the following definitions:
    High Hazard structures are located such that failure may cause loss 
of life or serious damage to houses, industrial or commercial 
buildings, important public utilities, main highways or major 
railroads.
    Moderate Hazard structures are located such that failure may cause 
significant damage to property and project operation, but loss of human 
life is not envisioned or poses a threat to relatively important public 
utilities
    Low Hazard structures are located such that failure would cause 
loss of the structure itself but little or no additional damage to 
other property.
    High- and moderate-hazard dams are inspected every two years. Low-
hazard dams are inspected every five years. Inspectors search for signs 
of distress on the structure such as cracks, slides, or seepage. They 
also look for trees, woody vegetation and animal burrows. Inspectors 
check the spillways to ensure that they are neither clogged nor showing 
signs of deterioration. If the structure meets all the necessary 
requirements as outlined in KRS 151.293 and KRS 151.295 (Attachments 1 
and 2), a Certificate of Inspection is issued to the owner. Otherwise, 
the owner is notified of any deficiencies. All of the coal ash 
impoundments in Kentucky are operated and maintained according to 
standards and have good compliance histories.
    The review of designs and permitting of dams and hazardous 
impoundments is required as set forth in KRS 151.100 and 401 KAR 4:030 
(Attachments 3 and 4) and Design Criteria for Dams--Engineering 
Memorandum #5 available at http://www.water.ky.gov/NR/rdonlyres/
EA39D4C4-9645-4D73-B90D-7AFC20DA86FD/0/WRMEMO_5.doc. All such 
structures except federal dams and coal slurry impoundments (which are 
permitted through Department for Natural Resources) must be reviewed, 
and a construction permit issued by the Division of Water. Design 
criteria, hazard classification information and submittal requirements 
can be found in this publication.
    After the construction permit is issued, the division performs 
inspections during critical stages of the work. Upon completion of 
construction, the owner submits a notice of completion along with as-
built drawings. When as-built drawings are received, a final inspection 
is conducted. If all work is satisfactory, the owner is granted 
permission to impound water and the completed dam is placed on the 
inventory of dams maintained by the division. In the case of coal ash 
impoundments, it is important to note that the waste is not disposed of 
within the impoundment, rather the material settles in the impoundment, 
then is removed for beneficial reuse or disposal in a landfill. If the 
material is disposed of in the impoundment, then it must be closed as a 
landfill, which requires an engineered cap and groundwater monitoring.
    Currently there is not a national criterion for dam safety, 
therefore there are significant variations in programs from state to 
state. Dam safety is an inter-jurisdictional concern, therefore 
consistency in standards across jurisdictions is appropriate. Recently 
the National Committee on Levee Safety proposed a national levee safety 
program with consistent standards and requirement for levees 
nationwide. The committee's draft report is currently under review by 
the Office of Management and Budget and is available at http://
www.iwr.usace.army.mil/ncls/docs/NCLS-Recommendation-
Report_012009_DRAFT.pdf. The draft Recommendations for a National Levee 
Safety Program may provide additional insights for your consideration.
    The December spill at the Tennessee Valley Authority's Kingston 
Plant in Harriman, Tennessee has brought into sharper focus concerns 
regarding an aspect of dam safety that Kentucky currently does not 
regulate, that being the development of emergency action plans (EAPs) 
for dam failures. In October, 2000 Kentucky experienced its own 
disastrous spill, a coal slurry impoundment operated by Martin County 
Coal Company released 300 million gallons of coal slurry waste into 
subsurface mine shafts, which then inundated local streams, destroying 
property, impacting water supplies, and smothering aquatic organisms. 
It resulted in a massive cleanup and extensive stream restoration work. 
Although the spill was not a result of a dam failure, this catastrophic 
release demonstrated the need for the development of EAPs that identify 
risks and guide emergency response in the case of a dam failure.
    Currently, and for the third consecutive year, there is proposed 
legislation before the Kentucky General Assembly that would mandate the 
development of emergency action plans (EAPs) for high hazard potential 
impoundments (Attachment 5). The legislation, if passed, will require 
the Energy and Environment Cabinet to develop regulations requiring the 
development, submission for approval, and implementation of EAPs for 
high hazard potential impoundments. The plans will be based on guidance 
published by the Federal Emergency Management Agency (FEMA) and take 
into account the characteristics of the impounded material in 
establishing requirements for breach analysis and inundation mapping.
    The Energy and Environment Cabinet met in January 2009 with the 
Utilities Information Exchange of Kentucky, an association that 
represents the coal-fired power generation industry, to discuss EAPs 
and other regulatory approaches under evaluation for managing coal 
combustion waste. The industry representatives indicated that they are 
preparing for regulations regarding EAP development, and recognize the 
potential development of other regulations regarding the chronic risks 
associated with managing coal combustion waste. They stated the 
importance of maintaining the ability to beneficially reuse the 
material and they expressed their desire to work with the Division of 
Waste Management and the Division of Water on any new regulations that 
may be implemented.
    Kentucky's challenge now is to evaluate our current regulatory 
programs and identify areas of weakness with respect to managing the 
variety of risks associated with coal combustion waste, whether that 
risk be contamination of waters of the Commonwealth, human exposure, or 
catastrophic failure. There are a variety of factors that must be 
considered when a coal fired power plant is deciding to manage its coal 
combustion waste as a wet or dry material, including site limitations, 
as well as environmental and public safety concerns. Another challenge 
facing Kentucky is to evaluate its regulatory programs to ensure that 
there are no impediments to choosing the approach that is in the best 
interest of protecting human health and the environment.
    Please do not hesitate to contact me if I can be of further 
assistance. I can be reached at (502) 564-3410 or at 
[email protected].

                              Sincerely,

                              Sandra Gruzesky, P.E., Director
                              Division of Water

    [NOTE: Attachments have been retained in the Committee's official 
files.]
                                 ______
                                 
    Mr. Costa. And we will now hear from Mr. Nick Akins, the 
Executive Vice President for Generation, the American Electric 
Power Service Corporation, to comment on this important piece 
of legislation, H.R. 493.

     STATEMENT OF NICK AKINS, EXECUTIVE VICE PRESIDENT FOR 
    GENERATION, AMERICAN ELECTRIC POWER SERVICE CORPORATION

    Mr. Akins. Thank you, and good morning, Chairman Rahall and 
Chairman Costa, and the remaining Members of the Subcommittee.
    My name is Nick Akins; I am the Executive Vice President 
for Generation for American Electric Power. I would like to 
thank the Subcommittee for the opportunity to present this 
statement on behalf of AEP, the Edison Electric Institute, and 
the Utility Solid Waste Activities Group on the Coal Ash 
Reclamation, Environment, and Safety Act of 2009, and the issue 
of safe management of coal ash at impoundments operated by the 
electric utility industry.
    The electric utility industry remains committed to ensuring 
the integrity and safe operation of the dams and impoundments 
in which we manage coal combustion byproducts, including coal 
ash.
    Utilities have safely managed hundreds of coal ash dams and 
water impoundments for decades. However, there have been times 
when we experienced failures. One happened in December at TVA's 
Kingston plant. More than 40 years earlier, in 1967, another 
serious breach occurred at AEP's Clench River plant in 
Virginia.
    When these instances occur, they should be scrutinized. And 
they should become a catalyst to bring about improvement in how 
we manage our facilities, and to ensure safe operation going 
forward. That is what AEP did after the 1967 incident, and that 
is what we believe the intent of H.R. 493 is today.
    The utility industry is taking the ash bill at TVA's 
Kingston power plant very seriously. In the wake of the spill, 
utility companies reexamined their dam safety and inspection 
activities, and many companies, AEP included, were taking 
immediate steps to ensure that safety inspections were up to 
date.
    The number of state regulatory agencies also conducted 
additional inspections of utility impoundments to assess their 
structural soundness. We welcome that additional level of 
scrutiny to provide assurance that our facilities are being 
safely operated, and AEP is taking a leadership role in the 
industry to develop a set of best practices for the safe 
management and disposal of coal combustion byproducts.
    In the wake of the TVA event, we support the intent of H.R. 
493 improving dam safety. Many states regulate CCB surface 
impoundmentts, and many utilities have their own monitoring 
programs. But having some level of Federal oversight or 
standards to provide consistency across the country has merit. 
Developing the appropriate Federal programs should begin with 
determining how things operate today, including inventorying 
existing impoundments and regulations and also determining what 
is working and where there are gaps in existing state programs.
    We understand the U.S. EPA is beginning the inventory 
process, and we respectfully suggest that the committee 
coordinate its actions with the efforts and findings of that 
agency.
    It also is imperative that any Federal program not produce 
overlapping or duplicative regulations. For example, although 
the Office of Surface Mining has an expertise regarding dam 
safety involving coal or mining waste of coal mines, OSM may 
not be best suited for addressing management standards for coal 
ash, which is generated and managed by an entirely different 
industry.
    And while H.R. 493 provides that states that have SMCRA 
authority can apply for authority to regulate coal ash 
impoundments under a Federal program, many states with 
developed regulations for coal ash impoundments do not have 
SMCRA authority.
    These state regulations maybe worked effectively, but as 
the bill is currently structured it appears to provide a 
potentially duplicative Federal program overlay, creating dual 
and possibly competing regulations.
    I would like to thank the Subcommittee for the opportunity 
to present the views of AEP, EEI, and USWAG on this issue. We 
are all committed to operating our facilities safely, and we 
would welcome the opportunity to work further with the 
Subcommittee on the development on a Federal approach, to 
ensure that CCB impoundment safety is managed in an efficient 
and effective way.
    I would be happy to answer any questions you have 
concerning my testimony. Thank you.
    [The prepared statement of Mr. Akins follows:]

   Statement of N. K. (Nick) Akins, for American Electric Power, The 
 Edison Electric Institute and the Utility Solid Waste Activities Group

    Good morning. My name is Nick Akins. I am the Executive Vice 
President--Generation for American Electric Power (``AEP''). I would 
like to thank the Subcommittee for the opportunity to present this 
statement on behalf of AEP, the Edison Electric Institute (``EEI'') and 
the Utility Solid Waste Activities Group (``USWAG'') on the ``Coal Ash 
Reclamation, Environment, and Safety Act of 2009'' and the issue of the 
safe management of coal ash at impoundments operated by the electric 
utility industry. 1
---------------------------------------------------------------------------
    \1\ EEI is an association of U.S. shareholder-owned electric 
companies, international affiliates, and industry associates worldwide. 
EEl's U.S. members serve roughly 90 percent of the ultimate customers 
in the shareholder-owned segment of the industry and nearly 70 percent 
of all electric utility ultimate customers in the nation, and generate 
nearly 70 percent of the electricity produced in the United States. 
USWAG is a consortium of EEI, the National Rural Electric Cooperative 
Association (``NRECA''), and over 100 electric utility operating 
companies located throughout the country. NRECA is the national 
association of rural electric cooperatives, many of which are small 
businesses. Together, USWAG members represent more than 85 percent of 
the total electric generating capacity of the United States and 
service.
---------------------------------------------------------------------------
Utility Commitment to Dam Safety
    The electric utility industry remains committed to ensuring the 
integrity and safe operations of dams and impoundments in which we 
manage coal combustion byproducts (CCBs), including coal ash. Utilities 
have safely managed hundreds of coal ash dams and water impoundments 
for decades. However, the incident that occurred at TVA is 
unacceptable, and therefore we agree with the objective of H.R. 493 to 
put in place appropriate federal mechanisms that will help ensure that 
coal ash dams continue to be managed safely going forward.
    The utility industry is taking the ash spill at TVA's Kingston 
Power Plant very seriously. In the wake of the spill, utility companies 
re-examined their dam safety and inspection activities. Many companies, 
AEP included, are taking immediate steps to ensure that safety 
inspections are up to date. A number of State regulatory agencies, 
including those in Arizona, Minnesota, Ohio, Pennsylvania, and West 
Virginia, are also conducting additional inspections of utility 
impoundments to assess their structural soundness. We welcome this 
additional level of scrutiny to provide assurance that our facilities 
are being operated in a safe manner.
    It is important to note that many State regulations already require 
detailed permitting, design, inspection and maintenance requirements 
for CCB surface impoundments under their respective dam safety and 
environmental regulations. In addition to State dam safety regulations, 
many utilities adhere to their own guidelines for the routine 
inspection, monitoring and maintenance of CCB impoundments consistent 
with federal dam safety guidelines. Utilities also implement measures 
to ensure the structural integrity of CCB surface impoundments, 
including ensuring that:
      surface impoundments are designed, constructed and 
maintained in accordance with prudent engineering practices;
      surface impoundments are regularly inspected for changes 
in appearance or structural weaknesses; and
      if a structural weakness is identified, steps are taken 
to eliminate the condition or structural weakness.
    These measures serve to ensure that CCB impoundments are operated 
to safely manage CCBs. AEP's Dam Safety Inspection and Monitoring 
Program serves as one example of the industry's CCB impoundment 
operations. AEP has operated coal ash impoundments for decades and 
currently owns and operates 40 earthen dam impoundments used to store 
cooling water, fly ash and bottom ash at its power plants. This total 
includes:
      Eleven large fly ash and bottom ash impoundments located 
in Ohio, West Virginia, Kentucky and Indiana;
      Six large water storage impoundments located in Texas, 
Oklahoma, Arkansas and Louisiana; and
      Several smaller ash storage impoundments located 
throughout our service territory.
    AEP's Safety Inspection and Monitoring Program is based on federal 
dam safety guidelines and applicable state dam safety regulations and 
includes the following key components:
      AEP's large dams are inspected annually by engineering 
staff under the direction of a professional engineer. The large dams 
are also inspected more frequently by plant staff.
      Many of AEP's smaller facilities are inspected routinely 
by plant staff and every two to three years by engineering staff.
      The large dams at several plants are equipped with 
instrumentation (for example, piezometers, surface survey monuments and 
slope indicators) to monitor the dam's structural conditions. 
Monitoring data for the instrumented dams are collected at least 
annually and a report outlining the condition and inspection results 
and recommendations is provided to the plant for implementation.
    Design modifications and expansions to existing dams are performed 
by professional engineers and reviewed by an independent professional 
engineer. In addition, the designs are reviewed and approved by the 
appropriate state regulatory dam safety officials.
Utility Industry View of H.R. 493--Need for Federal/State Coordination
    In light of the measures that AEP and others in the industry are 
taking to ensure the safety and integrity of CCB impoundments, we agree 
with the objective of H.R. 493--ensuring dam safety. Because different 
state approaches exist for regulating dam safety, the principle of 
having some level of federal oversight or standards to provide 
consistency across the country has merit. We also support the concept 
of inventorying the existing universe of CCB impoundments. In order to 
develop an effective federal response to impoundment safety, it makes 
sense to first characterize the universe of covered facilities and 
assess their integrity. In fact, we understand that U.S. EPA already is 
beginning the process of inventorying and assessing the structural 
integrity of coal ash surface impoundments across the country.
    Another important step in developing a federal response to CCB 
impoundment safety is understanding the extent and effectiveness of 
existing state regulatory programs. As explained above, many states, 
including those in which AEP operates, already have dam safety 
programs. Better understanding the scope and effectiveness of existing 
state programs will allow decision makers to determine what is working 
at the state level, identify gaps in state regulations and decide how 
existing programs can be improved. When gaps are found, we need to 
develop an effective federal response to fill those gaps.
    In short, the first step in considering a new federal dam safety 
program for CCB impoundments should be to determine the scope of the 
problem and then to coordinate any federal action with existing federal 
guidelines and state regulations. As I mentioned earlier, we understand 
that U.S. EPA already is inventorying and assessing the safety of CCB 
impoundments. We respectfully suggest that the Committee coordinate its 
actions with the efforts and findings of that agency.
    Absent this type of coordination, we are concerned about the 
potential of duplicative and overlapping regulation of CCB 
impoundments. For example, although the Office of Surface Mining, 
(``OSM'') has expertise regarding dam safety involving coal or mining 
wastes at coal mines, OSM may not be best suited for addressing 
management standards for coal ash, which is generated and managed by an 
entirely different industry--the electric utility industry. We 
respectfully suggest that the Committee first consider which regulatory 
body is most appropriate for developing federal regulations concerning 
the integrity of coal ash impoundments.
    Further, as I stated previously, there are existing state 
regulations addressing coal ash impoundments, and it is imperative that 
any federal program not produce overlapping or duplicative regulations. 
We need an effective, but coordinated approach. For example, while H.R. 
493 provides that states having Surface Mining Control and Reclamation 
Act (SMCRA) authority can apply for authority to regulate coal ash 
impoundments under a federal program, many states that have already 
developed regulations for coal ash impoundments do not have SMCRA 
authority. These state regulations may be working effectively, but as 
the bill is currently structured, H.R. 493 appears to contemplate a 
potentially duplicative federal program overlay creating dual and 
possibly competing regulations.
Beneficial Use of CCBs
    While we focus on ensuring dam safety, our industry also remains 
committed to continuing and expanding the array of beneficial uses of 
CCBs, including, among others, as raw material in Portland cement, for 
mine reclamation, as replacement for cement in concrete and grout, as 
mineral filler in asphaltic concrete, as aggregate for highway 
subgrades and road base material, and as a component of flowable fill. 
The beneficial use of CCBs conserves natural resources and energy, 
reduces greenhouse gas (``GHG'') emissions, and reduces the amount of 
CCBs that need to be disposed. The U.S. EPA extolled the benefits of 
CCB beneficial use in its written testimony last month during the 
Senate Environment and Public Works Committee oversight hearings on the 
TVA coal ash release. The EPA noted that by recycling 13.7 million tons 
of fly ash in 2007, in place of Portland Cement, the United States 
saved nearly 73 trillion BTUs of energy, equivalent to the annual 
energy consumption of more than 676,000 households. This also reduced 
greenhouse gas emissions of 12.4 million metric tons of CO2, 
which is equivalent to the annual GHG emissions of 2.3 million cars. 
Given these environmental benefits, AEP and the utility industry 
continues to work to maximize the options for CCB beneficial use. 
However, until full beneficial use of CCBs is achieved, continued 
management of CCBs in an environmentally responsible manner will remain 
an essential commitment of electric power generators.
    In sum, we support a program that ensures the structural integrity 
and safety of coal combustion byproduct impoundments, but want to also 
ensure that any federal program is efficient and effective. We would 
welcome the opportunity to work further with the Subcommittee on the 
development of a federal approach to ensure that CCB impoundment safety 
be managed in a coordinated manner.
    I would like to thank the Subcommittee for the opportunity to 
present the views of AEP, EEI and USWAG on this issue. I would be happy 
to answer any questions you have concerning my testimony.
                                 ______
                                 
    Mr. Costa. You still have another minute of your time. 
Thank you for your brevity, and to the point.
    Mr. Akins. Thank you.
    Mr. Costa. We look forward to working with you, and your 
comments, and the issue of uniformity as it relates to the 
different standards in different states.
    Now we are at the round of the questioning, so I have the 
first opportunity with five minutes.
    I would like to ask a question of all the panelists, 
whether or not you would both agree, or you would agree that 
the bill does enough, since two efforts that I think most 
people would think are common-sense response to the current 
circumstances.
    One, saying that basic Federal, minimum Federal standard be 
applied for safe coal ash impoundments. And two, assembling a 
national inventory, which I think is important. The 
presentation that Mr. McAteer made I think is to be noted, but 
I don't know that the national inventory frankly is complete on 
how many there are; and also the information on stability and 
what is stored in those impoundments so that we can make an 
assessment based on based upon best information, and the 
soundness of that information.
    Could each of you briefly indicate whether or not you would 
agree or disagree on those two important steps, quickly.
    Mr. Craynon. I would agree that those are very important 
steps to be taken, both in inventory and establishment of 
general standards.
    Mr. Costa. And it really hasn't been done nationwide.
    Mr. Craynon. That is correct.
    Mr. Costa. Mr. FitzGerald?
    Mr. FitzGerald. I am not aware of any nationally proposed 
processing of waste contaminants. I am not aware that there has 
been a national inventory for coal combustion product 
impoundments. And it is complicated by the fact that there is 
no unanimity among the states to have to classify these. 
Tennessee did not classify this failed structure as an 
impoundment.
    Mr. Costa. You noted that in your testimony.
    Mr. FitzGerald. I think that doing an inventory is 
extremely important. I think that a national set of standards 
is critical for states like Kentucky. We are one of 23 states 
that have adopted a misguided provision in our state law that 
says we can be no more stringent than the minimum Federal 
standards. And in the absence of Federal standards, the states 
simply are all over the map in terms of the quality regulation.
    No, and that is not limited. Obviously, these impoundments 
are a host of issues with regards to state and Federal 
regulation, and we always should be mindful of that.
    Mr. McAteer.
    Mr. McAteer. Yes, Mr. Chairman. I believe that the minimum 
Federal standards are absolutely essential.
    Second, as to the national inventory, in the materials that 
we put in the packets, we did a preliminary draft of looking at 
the NID, the National Inventory of Dams, for a series of 
states. And we have noted 149 impoundments just as a 
preliminary matter.
    You will note in that map, however, that Tennessee, the 
impoundments in Tennessee are not listed as part of the 
national inventory of dams. The national inventory of dams is 
inadequate, and I think they are absolutely essential that an 
inventory be done, and a ranking of those, as you suggest, a 
ranking of those as to hazardous materials. There are ranking 
systems for coal waste impoundments, but no ranking systems 
exist for these impoundments.
    Mr. Costa. Yes, I want to pursue the ranking. Because in 
all these things, I think developing some common-sense 
prioritization is important. Because not everything is as 
significant as it relates to health and safety as others, and 
you never have enough resources to treat them all the same.
    And so if you prioritize them based upon the most serious, 
I think you can get the best bang for your buck in terms of 
health and safety efforts.
    Finally, our last witness?
    Mr. Akins. Yes, I would totally agree with your approach in 
terms of being a common-sense approach. AEP operates in 11 
states, and we have impoundments in all of those states. And we 
are very focused on processes and procedures being common among 
those states, and we, in fact, have adopted the most stringent 
state requirements and applications to all of our plants across 
the territory.
    This is definitely a common-sense approach in terms of 
having some sort of Federal guideline, FED, you know, support.
    Mr. Costa. It is a good start. Let me quickly, because my 
time has almost run out, could each of you comment, beginning 
with you, on the merits of adding Federal requirements that 
coal ash impoundment operators, have an emergency action plan, 
as Mr. McAteer described?
    Mr. Akins. Yes. We have the requirement to put in emergency 
action plans for all of our class-one facilities. And we would 
certainly, certainly support that kind of effort.
    Mr. McAteer, I assume----
    Mr. McAteer. The only addition is that we think to involve 
citizens in the development of those plans is----
    Mr. Costa. Of the action plan, in the local community.
    Mr. McAteer. That is correct.
    Mr. Costa. Yes. Mr. FitzGerald.
    Mr. FitzGerald. Mr. Chairman, we are in the process now, 
and hopefully the Kentucky General Assembly before they adjourn 
in April or end of March, will have adopted a resolution 
directing the Division of Water to do emergency action plans 
for all high-hazard coal waste and coal ash impoundments.
    The state and the industry, to their credit, have come 
around and realized it is necessary.
    Mr. Costa. Good, good. My time is expired. Mr. Craynon, you 
can just nod your head.
    Mr. Craynon. Agreed. It is standard practice.
    Mr. Costa. Very good, thank you.
    The gentleman from Colorado, the Ranking Member, has now 
five minutes to ask his questions.
    Mr. Lamborn. Thank you, Mr. Chairman. Mr. Craynon, and I 
hope I pronounced that correctly, if this legislation is 
passed, how many employees do you estimate the Department of 
the Interior, and OSM in particular, will have to add in order 
to expand regulation to every coal-fired power plant in the 
country?
    Mr. Craynon. We have not at this point done a detailed 
analysis of what resources will be necessary, but we are more 
than happy to work with the Subcommittee to develop that as 
time goes on.
    Mr. Lamborn. Is there any way you could submit that to us--
--
    Mr. Craynon. Yes.
    Mr. Lamborn.--before this bill becomes, you know, hits the 
Floor?
    Mr. Craynon. We will be happy to respond to that.
    Mr. Lamborn. OK. OK, thank you. Also, for Mr. McAteer and/
or Mr. FitzGerald, given the fact that some states have 
excellent dam safety rules in place, how do you ensure that any 
Federal program for this does not result in unnecessary dual 
regulation of the same units?
    Mr. FitzGerald. Congressman, that is a very good question. 
That is something we want to avoid, because none of the 
agencies that I deal with have extra resources to squander in 
duplicative regulation.
    Section 2[g][2] of the bill protects existing state 
programs that impose equivalent or more rigorous standards. And 
so I would assume that as regulations would be developed, there 
would be an opt-out provision where the Agency could look at 
the existing state program, and would defer to that state 
program.
    You know, by putting in a floor preemption, you prevent 
kind of a downward spiral, but you don't prevent existing more 
rigorous programs. And for states like Kentucky, I wish we had 
the ability to go above the minimum standards. But 
unfortunately, we have turned the Federal floor into our 
ceiling.
    Mr. McAteer. Mr. Lamborn, I think the fact that we 
recommend, for example, that MSHA be involved in the approval 
of the plan is a conscious effort to try to reduce the cost, 
and to try to use what resources are there. The Mine Safety and 
Health Administration has a long history of studying for 36 
years, looking at impoundment plans, and also at training 
individuals. And I think that that is one of the areas where we 
would like to reduce duplication. We would like to reduce 
overlap, as well.
    Mr. Lamborn. OK, thank you. Mr. Akins, what does the 
recycling of coal ash byproducts do for the reduction of carbon 
emissions?
    Mr. Akins. Typically, if we are able to recycle, it reduces 
carbon emissions, if we reuse, like, fly ash in concrete for 
example, to make concrete. For instance, using fly ash reduces 
one ton for CO2 for every ton. It is a significant 
impact, and certainly supports the use of products like these 
in the industry.
    Mr. Lamborn. As a follow-up then, as currently written, 
will this legislation impact the electric utility industry? And 
if so, how?
    Mr. Akins. It will impact the utility industry, but 
depending on the outcome, obviously, and if a proper inventory 
is done, if rules are in place so you don't have duplicative 
regulations, it certainly can help the industry. Certainly for 
the industries, for the utilities that are multi-jurisdictional 
like AEP.
    But second, if it recognizes the state impacts and programs 
that exist and they meet those thresholds, the Federal 
thresholds, it could have a very positive effect.
    Mr. Lamborn. OK, thank you. And for any one of you, if 
Congress were to extend SMCRA jurisdiction over the 
impoundments at power plants, as proposed in this bill, do you 
believe that SMCRA clean-up funds should be available to help 
deal with the mitigation and clean-up of coal ash?
    Mr. FitzGerald. That is a good question. Congressman, from 
my perspective, representing a number of people who have low-
priority AML sites that probably will never be reached because 
the fund is not inexhaustible, the difference between the pre-
law mines and the pre-law, if this becomes law, impoundments is 
that these existing impoundments are under a regulatory 
framework. They are typically being under-managed.
    But in the case of the AML program, it was imposing in some 
states an entirely new regulatory framework where there had 
been none. And so it was looked at as a way of funding the 
remediation of sites for which there was no other clean-up 
obligation.
    For these impoundments, many of them, there is either 
imminent hazard authority or circular authority and obligation. 
I don't know that I would support that, except in the case of 
an orphan impoundment, where there was no responsible party.
    Mr. Lamborn. Does anyone else care to comment on that?
    Mr. McAteer. I would just second what Mr. FitzGerald said.
    Mr. Lamborn. OK. My last question before the time runs out. 
Do you believe that the EPA should categorize coal ash as a 
hazardous waste, under Subtitle C of RCRA? Any one of you.
    Mr. FitzGerald. I will take a crack at that as well. Coal 
combustion waste, you have a range of different waste, 
Congressman. The scrubber sludges typically are not, are going 
to be in a range where they are going to leach metals or 
radionuclides at a concentration that could adversely affect 
human health.
    Fly ash, I think the evidence, as we have gotten better at 
controlling air pollution, we are shifting the medium of where 
those metals and where the other pollutants are ending up. They 
are swarmed to the particulates that we are capturing.
    And I think there really is a need, using appropriate 
testing, to go back and revisit whether, under certain types of 
disposal and management, these should be regulated as hazardous 
waste.
    Mr. Akins. We do not believe it should be as a hazardous 
waste, because obviously the EPA has looked at this several 
times and determined it is not a hazardous waste. It doesn't 
meet that threshold.
    And second, 30 percent to 40 percent of our fly ash at AEP 
is used for products: concrete products, gypsum. We have a 
wallboard facility that just went in place in the last two 
years in West Virginia. Those kinds of facilities and reuse of 
those products is a prudent action to take.
    Mr. Lamborn. OK. Thank you for your testimony and for 
answering the questions.
    Mr. Costa. All right. The gentleman's time has expired, and 
we are going to have to walk through some of these issues, of 
course.
    The Chairman, and the author of the legislation, is now 
next, and we defer to the gentleman from West Virginia.
    Mr. Rahall. Thank you, Mr. Chairman. Mr. Craynon, you have 
a very valuable distinction and honor for which I want to 
recognize you today. I don't know whether you know it or not. 
But I am going to congratulate you on being the first person 
from the Interior Department, under the Obama Administration, 
to appear before a committee in the House of Representatives.
    Mr. Craynon. Thank you, Mr. Chairman.
    Mr. Rahall. Congratulations. And my first question is to 
you.
    As you know, under H.R. 493 we incorporate the primacy 
provisions of SMCRA. Under the bill, a state with an approved 
regulatory regime could assume primacy in regulating coal ash 
dams under the terms of this legislation. And, as with SMCRA, 
your agency would regulate coal ash dams in those non-primacy 
states.
    Coal ash is impounded in the states with no coal mining, 
such as Florida. Now, I know you might well open up a field 
office in Florida. But for the purpose of regulating coal ash 
impoundments, do you have any suggestions on how states like 
Florida or Wisconsin could gain primacy under the terms of this 
legislation?
    Mr. Craynon. At this point in time, I am not in a position 
to tell you exactly how best we think that could be approached. 
But I would assume that a similar approach for approving state 
programs, as is used under the SMCRA program, could be 
appropriate.
    Mr. Rahall. OK. Fitz--Tom----
    Mr. FitzGerald. That is all right.
    Mr. Rahall. You have submitted some suggested amendments to 
the bill, and I thank you for that.
    Mr. FitzGerald. Absolutely.
    Mr. Rahall. Do you have any comments on the changes that 
OSM proposes in their testimony?
    Mr. FitzGerald. Well, I understand looking at the bill cold 
that the Agency would have responded the way they did. But the 
reason that the definition of impoundment is written as it is, 
to include solid, semi-solid, and liquid storage or disposal in 
any embankment structure, is to get precisely at the sort of 
situation that happened at TVA's Kingston plant. Where the 
facility, basically you had an impoundment that was a big, old 
slurry, you know, ash pond.
    And then within it, they had created three separate 
landfill cells and palleted them as a landfill rather than as 
part of that impoundment. So that there was no, even if it had 
been, you know, a high-hazard impoundment, which it was in 
fact, at law it was called something completely different. It 
was inspected only very infrequently, and not subject to the 
sort of rigorous design standards.
    We wrote this specifically to address that situation and to 
assure that this would not happen again under, under, you know, 
mislabeling the way it happened.
    Mr. Rahall. Is that what they called sludge sales?
    Mr. FitzGerald. They called them dredge sales.
    Mr. Rahall. Dredge?
    Mr. FitzGerald. And basically what they were doing was 
scooping the stuff out, and, you know, semi-liquid, and putting 
it in a cell.
    Still, I have inquired of Megan Lockhart from TDEC whether 
they had any sort of a leachate collection system. Because I 
can't imagine with that--you know, this is a hydrophilic 
material. It is going to soak in the water. There is no daily 
cover. And if they didn't have an effective way to decant that 
water, there is no question that it was going to raise the 
saturated surface to the point where it was going to blow out 
to the side of it, which is what happened.
    So, the reason it was written the way it was, and the 
definition of impoundment and the definition of covered waste 
was specifically to address the fact that this material, in 
these sorts of cells, even if it is placed in there in solid 
form, if it gets, you know, rainfall is going to saturate it. 
It is going to stay with it, and it could very well convert it 
into a semi-liquid with those sorts of consequences.
    As the definition of slag, I understand the concern that we 
don't want to take in non-coal combustion waste slag. The 
reason it was used is because we have a number of facilities 
that are now looking at coal gasification, which produces a 
somewhat different product. It doesn't produce a fly ash and a 
bottom ash; it produces what is either called a slag or a frit, 
which is a more glassine substance that, depending on the 
literature you read, has some potential--it has less, but still 
some, potential to leach some of the residuals that are left 
after the gasification process.
    Mr. Rahall. Thank you. Mr. Akins, I appreciate your remarks 
very much. They are very responsible. And I agree with you that 
we need to expand the beneficiary uses of coal ash, rather than 
impound the material.
    And that was an issue that I raised in my letter to the EPA 
Administrator, that any regulations promulgated under RCRA 
should promote the recycling of coal ash into beneficial 
applications.
    I also know that in Wisconsin, 85 percent of coal ash is 
recycled. Why do you suppose the percentage is so high in that 
state?
    Mr. Akins. Could be different industries in place that are 
local, could be different requirements for concrete. The market 
obviously would be there for that kind of, that kind of 
material.
    Really, it does depend on many factors. I mean, we use 
everything from plastics to concrete to wallboard facilities, 
those types of things. So it depends on what is available.
    For example, the wallboard facility, the market could only 
take so much, so it will depend on the location and what the 
market actually can support.
    Mr. Rahall. OK. Davitt, my time is running short, but you 
do have one last opportunity before it expires.
    Mr. Costa. We always have time for the Chairman.
    Mr. Rahall. I just want to correct you. The National 
Research Council's coal waste impoundment study referenced in 
your testimony, if I recall--and I know we have been here a few 
number of years, and you kind of lose memory after a while--but 
I think it was Sen. Byrd and myself commissioned this, rather 
than Sen. Byrd and Hal Rodgers.
    Mr. McAteer. Mr. Chairman, after I said that and went on to 
the testimony, I thought to myself, what an error to make at 
this particular time.
    [Laughter.]
    Mr. McAteer. But I do apologize. It certainly was you and 
Sen. Byrd.
    Mr. Rahall. The record shall be corrected.
    [Laughter.]
    Mr. Costa. I have unanimous consent. I am glad that you 
corrected that, Mr. McAteer. You were off to a good start.
    [Laughter.]
    Mr. Rahall. Davitt, you noted the use of mine sites for the 
disposal of coal combustion residues raises potential concerns 
and potential benefits. And you referenced the study which I 
just commissioned, I just announced.
    Anyway, I would like to note that in my letter to the EPA 
Administrator, as I mentioned earlier, I did state that this 
practice should be discouraged until regulations implementing 
the Council's recommendations are put into place.
    As you know, we have a situation in West Virginia where the 
DEP does not know if the injection of coal slurry into mines is 
safe, so I really don't think we want to ramp up disposing coal 
ash into mines until adequate regulations are in place.
    With respect to disposal of coal ash and impoundments, 
would you say that the West Virginia regulatory program is 
similar to what I am proposing in the pending legislation?
    Mr. McAteer. Congressman, I agree with you that the 
findings of the Commission, as well as the study done, or not 
completed by the West Virginia DEP, raises real questions about 
the use of fly ash injection into mines. There are very serious 
concerns. And I think that the Commission's recommendations 
need to be adopted first as a structure if that is to happen.
    The second is that we haven't, we don't understand the 
long-term consequences of such injections. We have some 
injection experience now in West Virginia, because we have done 
some; but we don't understand the long-term consequences, nor 
do we understand where the stuff is going to go at the end of 
the day. And whether it is going to contaminate water systems 
and aquifers, et cetera. We suspect it is.
    There is some suspicion among some citizen's groups and 
some of our initial studies in the coal impoundment studies 
have suggested that the leaching of the materials. In coal 
waste impoundments you expect it to go underground, you expect 
it to be porous, and to go into the systems.
    We have found that--we can't make a positive conclusion to 
100 percent. But we have found that where this is some of this 
porous-nature material going into the systems, and those folks 
who live downhill are seeing that their water supplies, their 
wells, are suffering from contamination. And I think that 
really needs to be looked at. And I recommend, as you have, 
that the Committee's conclusions be made part of an overall 
structure before anything is done. And I think that is a very 
sound approach. And I think that, as I understand it, that is 
what you are doing.
    It is also one of the reasons why I recommend that we use 
the dry method to dispose of this. Because in case of coal 
waste impoundments, there is a reason why companies want to do 
that. And that is, besides getting rid of the stuff, they want 
a cheap--inexpensive, I should say--constant supply of water so 
that they can clean the next round of coal that is coming out 
of the mine. And that impoundment does that for them.
    I see no economic reason, other than the fact that it is 
cheaper in some instances, to wet this coal ash material. I see 
no reason why, there is no advantage of it, except that your 
costs, up-front costs are less for that than dry impoundment.
    I think dry impoundment is a positive step. And I think 
that is a step that EPA has recommended, the National Academy 
of Sciences has recommended, and others have recommended, and 
it is a positive approach.
    Mr. Rahall. Great. Well, just let me repeat the question, 
and I believe you did answer.
    But would you say that the West Virginia regulatory program 
is similar to what I am proposing in my legislation?
    Mr. McAteer. I think the regulatory program has some 
similarities. Yes, sir.
    Mr. Rahall. Yes.
    Mr. McAteer. Yes is the answer.
    Mr. Rahall. Thank you.
    Mr. McAteer. You are welcome.
    Mr. Rahall. Thank you, Mr. Chairman.
    Mr. Costa. I think we have a qualification. Next, the 
gentleman from Utah, Mr. Chaffetz, a new Member to the 
Subcommittee.
    Mr. Chaffetz. Well, thank you, Mr. Chairman.
    Mr. Costa. Chaffetz, is that correct?
    Mr. Chaffetz. Yes, we are getting there. Thanks, I 
appreciate it.
    And Mr. FitzGerald, I hope you can carry back to your state 
and your colleagues our sincere wishes and prayers for Ms. 
Gruzesky, if I pronounced her name properly. That is sad to 
hear, and I know that our hearts and minds are there, as well.
    With that, I would like to first go and have a brief 
discussion. My time is short.
    It is my understanding that the U.S. Environmental 
Protection Agency has, on numerous occasions, articulated and 
looked at these coal combustion byproducts, and determined that 
they are not hazardous waste. They had four criteria for the 
corrosivity, reactivity, ignitability, and toxicity.
    Would any of you disagree with those four criteria, or the 
conclusion that they came with?
    Mr. FitzGerald. I would disagree. If you look at the 
statutory definition of what is a hazardous waste, now, the 
Agency has adopted two different mechanisms. As you stated, one 
is they list some categorical types of waste from different, 
different activities. And the second is they have 
characteristics. And one of them is the characteristic of EP 
toxicity. What they use is a short-term dilute acid test. It is 
now TCLP toxicity, Total Constituent Leaching Procedure.
    It is intended to mimic the leachate characteristics of a 
municipal solid waste landfill, to determine if that waste, if 
disposed in a solid waste landfill, would leach metals at a 
concentration 100 times safe drinking water standards.
    In those situations where this waste is being managed in 
other aspects, whether in a monofill, or as construction 
material, or as so-called structural fill in some beneficial 
reuse--and I use that phrase very loosely, because it is very 
loose in the way it is applied in Kentucky and probably a 
number of other states--there are other tests that should be 
used to determine----
    Mr. Chaffetz. OK, but the current concurrent configuration 
are those four, correct?
    Mr. FitzGerald. That is what the agency uses.
    Mr. Chaffetz. That is correct? And this does not, it does 
not get into those four, the corrosivity and the four that I 
named.
    Mr. FitzGerald. Right, right. It is under the current 
criteria that EPA applies.
    Mr. Chaffetz. My time is short.
    Mr. FitzGerald. I am sorry.
    Mr. Chaffetz. I think I understand the direction you are 
going.
    Mr. Craynon?
    Mr. Craynon. We have worked with our colleagues at the EPA 
on these materials. Because over the last decade or so we have 
been considering the appropriate regulatory framework for coal 
mine placement, and we concur with the findings that the EPA 
made in the regulatory determination.
    Mr. Chaffetz. Thank you. Mr. Craynon, if I can go to the--
you expressed concern about the six-month timeframe, which does 
seem quite short. What would you recommend in terms of a 
timeframe, should this be enacted?
    Mr. Craynon. Well, as I stated in my testimony, our 
experience is that a proposed regulation takes approximately a 
year. That gives us time to do the public outreach, prepare the 
supporting documents, and actually do the consultation with 
other involved agencies.
    Mr. Chaffetz. Briefly, do either of the other three of you 
care to comment on the timeframe aspect?
    Mr. FitzGerald. Well, the timeframe for taking a regulation 
from nothing into promulgation would be longer. In this 
situation we have a history going back to 1979 of existing 
regulations governing impoundments for water and coal slurry. 
So in terms of identifying which standards would be applicable, 
obviously it is an aggressive timeframe.
    Mr. Chaffetz. Do you have a specific recommendation as to 
the timeframe?
    Mr. FitzGerald. I think, if you look at the interim 
program, they had what, a year to do the interim program? You 
know, given the resources, they are understaffed now, so they 
are really all resource issues. A year is probably reasonable.
    Mr. Chaffetz. OK.
    Mr. Rahall. Will the gentleman yield very quickly?
    Mr. Chaffetz. Yes, please.
    Mr. Rahall. The EPA has had 29 years thus far.
    Mr. Chaffetz. They certainly have. So 29 years, would that 
be enough time?
    [Laughter.]
    Mr. McAteer. It appears that it hasn't been enough time.
    Mr. Chaffetz. OK, fair enough. The last question here is 
just about the term ``slag.'' You expressed some concern. Can 
you expand upon that, Mr. Craynon?
    Mr. Craynon. Well, slag is a very loosely used term for any 
waste product from a fire- or heat-induced kind of refining 
technique. Slag can be used for the waste material for copper 
refining, or other metals refining, other kinds of industrial 
processes. It is just not a precise term that refers only to 
the waste from coal production.
    Mr. Chaffetz. Mr. Akins, do you have----
    Mr. Akins. I would agree with that, his comments on that.
    Mr. Chaffetz. OK. Thank you, Mr. Chairman. I yield back the 
balance of my one second there.
    Mr. Costa. All right. Thank you very much for your 
timeliness.
    Our next Member, who is a returning Member to the 
Subcommittee, who actually first brought this to our attention 
prior to the accident that took place in Tennessee, Congressman 
John Sarbanes, who has had his own experience within his own 
district on these impoundments and the impact it has had in his 
own Congressional District.
    We thank you for your efforts last year. And I am sure that 
you have some good questions for the witnesses before us.
    Mr. Sarbanes. Well, thank you, Mr. Chairman. I appreciate 
your holding that hearing last year, which really initiated the 
kind of oversight, and hopefully regulation, that there needs 
to be in this area.
    My one observation is just some degree of disbelief that 
this thing has had a focus for as long as it has without 
resulting in the kind of regulatory regime that would have 
prevented many of the incidents that have been mentioned today.
    As the Chairman indicated, in my district last year it came 
to light, with the effects of the disposal of fly ash, a bin, 
and a failure to properly provide for measures against leaching 
and other things, which then affected the water supply. It led 
to a significant settlement with Constellation Energy there, 
and has also triggered some further regulatory steps by the 
State of Maryland.
    But I wanted to understand a couple of things. First of 
all, I want to thank the Chairman of the full committee for 
what he termed as this rifle shot directed at the particular 
issue that was involved in the Tennessee disaster, which is to 
look at these impoundments, which are largely designed to 
handle wet coal waste.
    I gather that the Surface Mining Reclamation and Control 
Act now governs the disposal of coal waste at a mine location. 
Is that right? But doesn't extend beyond that.
    Mr. Craynon. That is correct.
    Mr. Sarbanes. And that is why the legislation that is being 
proposed is necessary?
    Mr. Craynon. That is correct, sir.
    Mr. Sarbanes. OK.
    Mr. McAteer. Congressman, if I might add, the jurisdiction 
is divided between the Mine Safety and Health Administration 
and the Office of Surface Mining, SMCRA. Under SMCRA, the 
general rule of thumb is MSHA controls it when the waste is on 
mine property, in conjunction with OSM; and OSM has 
responsibility if it goes off the mine property.
    Mr. Sarbanes. I understand. The Chairman, Chairman Rahall 
also pointed out, and has taken pains to point out, that in 
many respects, because this is a rifle shot, it should be 
viewed as just the first step of many to establish a larger 
regulatory framework to deal with this kind of combustion 
waste. Particularly since the projections are that the tonnage 
is going to increase significantly going forward.
    I did, in the last exchange, though, pick up on something 
that was being implied, I thought. And that is, there was some 
discussion of moving more toward dry impoundment versus, I 
guess, wet impoundment. And would dry impoundment include fly 
ash, or not?
    Mr. McAteer. Yes, Congressman, it would include fly ash.
    Mr. Sarbanes. OK. Well, I guess that is important from my 
perspective. I mean, as it happens, Mr. Chairman, your 
legislation may not get directly to any of the sites that we 
have in Maryland, because we don't have this wet disposal going 
on there.
    But to the extent this discussion is going to lead to the 
conclusion that dry impoundment is a better, safer way to go, 
then it raises the bar on making sure that the disposal of fly 
ash, for example, which, since fly ash would now be seen as a 
more preferred option, that the disposal fly ash needs to be 
done in a way that makes, that makes sense.
    And so by taking the rifle shot and beginning this process, 
we are also inviting the need to make sure that larger 
regulatory framework is in place, which I think is what the 
Chairman was alluding to. And so we are going to continue to 
focus on that.
    Before my time runs out, I did just want to come back again 
to the beneficial use question. Because the point has been made 
that in some places, you know, up to 85 percent of the waste 
generated is being disposed that way.
    Could we reach a point in time where beneficial use would 
be available to basically dispose of 100 percent of the waste 
that is generated in this? Or is that not a reasonable goal to 
have?
    Mr. FitzGerald. If I could take a shot at that. I think 
what you need in order to encourage beneficial reuse more 
broadly is a set of standards that differentiate between 
legitimate beneficial reuse and sham beneficial reuses. Because 
there is--utilities, to a certain extent, are reluctant to let 
someone else have their ash. They understand circular 
liability, and so many utilities will not, for example, give 
coal operations their ash to dispose of at coal mines. Some 
utilities do.
    We have situations in Kentucky where one utility is 
generating fly ash and bottom ash, and sending it right over to 
a Portland cement company that is actually using it and 
incorporating it into product, where it is bound, where there 
is not environmental consequences associated with whatever 
metals are there.
    We also have situations where there are sham beneficial 
reuses under very weak regulations. And I think in order to 
encourage the utilities and encourage the potential users, some 
standards on the quality of, and the composition of, those 
combustion byproducts, and some standards on how to assure 
legitimate versus sham uses would be helpful.
    Mr. Sarbanes. Fair enough. Thank you.
    Mr. Craynon. Certainly it is important that, to see that 
from an expansion of the market respect, if it would be great 
to find more beneficial uses for fly ash. And it is not, I 
mean, certainly we can raise that percentage, but certainly we 
have to be aware of what those uses are. And I think that is 
probably one of the things we have to understand going forward.
    But typically, we would obviously like to see more fly ash 
used for those kinds of benefits.
    Mr. McAteer. If I might, Congressman. We produce 131 
million tons of this a year. That number is expected to go up. 
We need to find something to do with it.
    Now, some of it is going to be more dangerous, some of it 
is going to have more toxicity to it. But we need to find ways 
to deal with that, and we need to find what other people around 
the world are doing with it to find out how we might use that 
beneficial use to apply some of this to other locations.
    Mr. Costa. The gentleman's time has expired, but we thank 
you for those good questions.
    It is the Chair's intention to close the hearing after our 
last Member has had an opportunity to ask their questions. I 
will ask Members of the Subcommittee who have further questions 
to submit them for the record. And as I mentioned on the 
outset, if you do that sooner rather than later, we give our 
witnesses an opportunity to respond to your questions on any of 
the points that have been discussed, or the testimony that has 
been provided thus far.
    Our last Member of the Subcommittee, a new Member who I met 
yesterday, a gentlewoman from Wyoming, Mrs. Lummis. Welcome to 
the Subcommittee.

STATEMENT OF THE HONORABLE CYNTHIA M. LUMMIS, A REPRESENTATIVE 
             IN CONGRESS FROM THE STATE OF WYOMING

    Mrs. Lummis. Well, thank you. Thank you very much, Mr. 
Chairman. I appreciate your hospitality last evening.
    And like our full committee Chairman, I share a concern for 
this subject because our states are major coal-producing 
states. Mine, the greatest coal-producing state in the nation. 
It is very important to me to see that those products are used 
in a safe manner so they continue to be of use to the people of 
this country, for the benefit of the people in my state, as 
well.
    And I want you to know also, Mr. FitzGerald, that I could 
feel my own blood pressure go up when you were relaying the 
experiences of some of your clients. Because I am a landowner 
who lives downstream from a RCRA facility that had a failed 
impoundment. And I remember what it feels like to have your 
land polluted in that manner, and how helpless it feels.
    And even under RCRA, sometimes more regulation throws up 
obstacle that allows a company that is not stewardship-oriented 
to just appeal and stall, and actually benefits them because of 
a regulatory scheme that is not a rifle shot. I think what we 
are looking for here is to find the rifle shot that will 
actually help the situation, instead of providing opportunities 
for industries that are not stewardship-oriented to throw up 
roadblocks. And certainly, that does not impair the abilities 
of companies that are stewardship-oriented from serving this 
country well.
    [The prepared statement of Mrs. Lummis follows:]

Statement of The Honorable Cynthia Lummis, a Representative in Congress 
                       from the State of Wyoming

    Thank you Mr. Chairman.
    With two recent spills occurring at TVA's Tennessee and Alabama 
power plants--accidents that simply should not happen--there is no 
question that today's hearing is a timely one.
    As the lone Representative in the U.S. House for the largest coal 
producing state in the nation, I am the first to realize that the 
future viability of this abundant resource will be almost wholly 
dependent on our ability to use coal in the most efficient, clean, and 
yes--environmentally sensitive--way possible. Coal Combustion byproduct 
spills of this nature simply add to an already uphill battle faced by 
our coal producing and coal burning industries. These events are all 
the more frustrating because they can be avoided.
    The legislation under consideration today raises other timing 
concerns as well. I will be interested in learning from our witnesses 
today whether pieces of this bill that require comprehensive data 
collection by the U.S. Department of the Interior are appropriate, or 
whether they are duplicative of similar inventory and assessment 
efforts already ongoing at the Environmental Protection Agency. I am a 
conservative who generally errs on the side of ``smaller government is 
better government.'' I am therefore also interested in this 
subcommittee studying whether encouraging increased coordination with 
our state governments is a potentially more appropriate first step than 
the expanded federal oversight mandated in this legislation.
    These are the lenses from which I hope today's panel will review 
and comment on the legislative efforts being debated today. Again, I 
look forward to hearing your testimony and I appreciate the opportunity 
to begin a thoughtful dialogue on this issue.
    Thank you Mr. Chairman. I yield back the balance of my time.
                                 ______
                                 
    Mr. Lummis. My first question, thank you, is for Mr. Akins. 
Could you elaborate on the EPA's ongoing assessment of coal ash 
surface impoundments? Such as an assessment timeline, how that 
assessment is being coordinated with the electric utility 
industry and such.
    Mr. Akins. Yes. We have been working with the EPA, and the 
EPA is also working with the state agencies. And many of the 
states have already made the request for additional information 
in terms of engineering studies, in terms of inspections, in 
terms of the impoundment materials. Those types of things have 
been already accomplished; they are already in the progress of 
being done.
    Now, EPA is somewhat short-handed. I think they are 
dependent on the state agencies, and they are obviously 
dependent on us to actually produce that type of information. 
That is an ongoing process that is occurring now.
    Also, the utility solid waste activities group has been 
involved with the EPA, as well, because they have been working 
on standards to be applied across the industry, associated with 
the monitoring of these areas.
    There is a lot of work being done. I don't know what the 
timeline is; maybe someone else does. But that is what I know 
about at this point.
    Mrs. Lummis. Thank you very much. Mr. Craynon, could you 
respond as well? I would like your feedback on whether the 
inventory of existing impoundments in this bill would add value 
to EPA's ongoing assessment, or is it duplicative?
    Mr. Craynon. Well, I hesitate to speak for my colleagues at 
EPA, but I would assume that they would welcome any input that 
added to what they have already got underway.
    Mrs. Lummis. OK. Thank you, Mr. Chairman. I would also like 
to ask Mr. Craynon, does OSM have the expertise to develop 
regulations for impoundments at power plants now, or is that 
something that you would have to acquire?
    Mr. Craynon. As I mentioned in my testimony, impoundment 
safety has been a part of the Surface Mining Regulatory Program 
since the beginning. And we feel very confident in our ability 
to look at the engineering of impoundments, wherever they would 
be located. But this would expand the area that we would be 
responsible for.
    Mrs. Lummis. OK. Thank you very much. Question for Mr. 
FitzGerald.
    You testified the definition of impoundment should be 
broadened in the bill to encompass all embankment-type 
structures that retain these wastes, whether in a solid, semi-
solid, or liquid form. And I want to ask, what is your 
reasoning for including solid coal materials in this 
definition?
    Mr. FitzGerald. That is a good question. It would be solid 
coal combustion waste materials. And the reason for including 
them is because they are a type of material--what we are 
looking at here is embankment-type landfills. They are material 
that will retain water. They are typically disposed of without 
daily cover because there is no putrescible material there. And 
so they will be exposed to the elements, and they will become, 
over time with that kind of a disposal method, a semi-liquid.
    So they will start out in a solid form. I am not sure what 
Tennessee, if Tennessee would have called this a landfill. If 
this material, when it was being placed in there, I don't know 
whether they would have considered it semi-liquid or solid.
    But I was trying to ensure that any time you are building 
an embankment structure that is, of necessity, above grade, and 
you are placing this material in there, a hydrophilic material, 
that it would be regulated under rigorous standards, so that 
impoundment would be able to withstand the potential that the 
material becomes saturated, would increase the saturated 
surface on the face of the impoundment, and eventually fail.
    Mrs. Lummis. OK. Mr. Chairman, thank you kindly. And I 
would also like to thank our witnesses for being here today.
    Mr. Costa. Thank you for your good questions. And again, 
welcome to the Subcommittee.
    And I want to thank our witnesses, as well, on behalf of 
the entire Subcommittee, for your good work, your testimony. 
There may be further questions that will be submitted to you 
with regards to the issue at hand.
    It is my understanding, for Members of the Subcommittee and 
those in the audience, that Chairman Rahall does intend to 
bring this matter to the full committee in the future for a 
mark-up, and the time to be determined by the Chairman.
    Your testimony is timely, and I am sure that there will 
continue to be information and exchanges on that information as 
this bill moves forward. It is a work in progress. We 
appreciate all of your good work.
    Thank you very much. The Subcommittee is now adjourned.
    [Whereupon, at 11:40 a.m., the Subcommittee was adjourned.]

    [Additional material submitted for the record follows:]

   Response to questions submitted for the record by Nicholas Akins, 
    Executive Vice President for Generation, American Electric Power

Responses to Questions from Representative John P. Sarbanes of Maryland
 QUESTION 1: Currently coal ash is beneficially used in concrete 
        manufacturing, building materials, roadway embankments, 
        development projects, and certain agricultural applications, 
        what specific federal policies would you recommend to expand 
        the current beneficial reuse of coal ash?
RESPONSE 1:
    As an initial point, it must be made perfectly clear that 
regulating coal ash as a hazardous waste would have a significant and 
negative impact on the beneficial use of these materials. EPA itself 
recognized this point in its 2000 Regulatory Determination for fossil 
fuel combustion wastes. Aside from concluding that coal ash did not 
warrant hazardous waste regulation, EPA recognized that designating 
coal ash as a hazardous waste would place a ``significant stigma on 
these wastes, the most important effect being that it would adversely 
impact beneficial use.'' 65 Fed. Reg. 32214, 32232 (May 22, 2000). EPA 
did not want to ``place any unnecessary barriers on the beneficial use 
of these wastes, because they conserve natural resources, reduce 
disposal costs and reduce the total amount of waste destined for 
disposal.'' Id.
    The States and coal ash marketers and users concur with this 
assessment and have continued to urge EPA to avoid designating coal ash 
as a hazardous waste because such designation would effectively end the 
beneficial use of these materials. In fact, some State beneficial use 
programs expressly prohibit the beneficial use of a hazardous waste. 
Thus, if coal ash were inappropriately labeled a hazardous waste, 
beneficial use would end immediately in these States.
    With respect to expanding the beneficial use of coal ash, we 
recommend that EPA, the Department of Energy and other participating 
federal agencies remain committed to the Coal Combustion Products 
Partnership (C2P2) program. The 
C2P2 program is a cooperative effort between EPA, 
the American Coal Ash Association, the Utility Solid Waste Activities 
Group, the U.S. Department of Energy, the U.S. Department of 
Agriculture-Agricultural Research Service, U.S. Federal Highway 
Administration, and the Electric Power Research Institute to help 
promote the beneficial use of Coal Combustion Products (CCPs) and the 
environmental benefits that result from their use.
    Among the goals of the program are to (1) reduce adverse effects on 
air and land by increasing the use of coal combustion products to 50 
percent in 2011 from 32 percent in 2001, and (2) increase the use of 
CCPs as a supplementary cementitious material in concrete by 50 
percent, from 12.4 million tons in 2001 to 18.6 million tons in 2011, 
thereby decreasing greenhouse gas emissions from avoided cement 
manufacturing by approximately 5 million tons. The federal government's 
commitment to the C2P2 program must be sustained 
and be reflected in overall regulatory decisions involving coal ash.
    Moreover, the federal government, and EPA in particular, should 
more aggressively use the federal Comprehensive Procurement Guideline 
(CPG) for Products Containing Recovered Materials (codified at 40 
C.F.R. Part 247) to include additional items manufactured with coal 
ash. This is an important mechanism for directing federal procurement 
dollars to products containing the highest percentage of recovered 
materials practicable, including coal ash. See RCRA 6002, 42 U.S.C. 
Sec. 6962. Congress should direct EPA to use this important program 
more aggressively to further promote the environmental beneficial uses 
of all coal combustion byproducts.
 QUESTION 2: Are you aware of any downside in the beneficial reuse of 
        coal ash such as runoff, leaching or diminished structural 
        integrity of the building materials?
RESPONSE 2:
    We are not aware of any downsides regarding the beneficial reuse of 
coal ash in the context of structural integrity of building materials. 
In fact, EPA's C2P2 website contains information 
underscoring the fact that the proper use of coal combustion products 
(CCPs) in building applications can yield environmental, economic, and 
product performance benefits. EPA's C2P2 site 
highlights the fact that the ``inherent performance benefits of 
concrete made from coal ash actually leads to additional environmental 
benefits. Highways and bridges made with coal ash concrete are more 
durable than those made without it and, therefore, do not need to be 
repaired and replaced as often.'' See www.epa.gov/epawaste/
partnerships/c2p2/index.htm.
    As with any construction or engineering project where coal ash or 
any material is being used for engineering purposes, care must be given 
to control runoff. To help address these concerns, consensus standards 
have been developed by ASTM International specifically designed for the 
``Design and Construction of Coal Ash in Structural Fills.'' See ASTM 
Standard DE2277-03. This standard covers procedures for the design and 
construction of engineered structural fills using coal fly ash, bottom 
ash, or ponded ash. In addition, EPA's C2P2 
program cites research conducted or supported by the Electric Power 
Research Institute, government agencies, and universities illustrating 
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. See www.epa.gov/epawaste/partnerships/c2p2/
index.htm. Again, however, as with any building materials, precautions 
and sound management practices should be applied when using coal ash in 
unencapsulated uses.
 QUESTION 3: EPA Administrator Jackson has said that she will move 
        aggressively to regulate the disposal of coal combustion waste. 
        What do you think are the most important elements of a 
        regulatory framework for the disposal of dry coal combustion 
        waste products? How do you think those regulations should be 
        structured?
RESPONSE 3
    We believe that EPA properly identified the regulatory framework 
for coal combustion waste in its May 2000 Regulatory Determination for 
fossil fuel combustion wastes. 65 Fed. Reg. 32214 (May 22, 2000). 
Specifically, EPA determined that coal combustion wastes do not warrant 
hazardous waste regulation. Rather, EPA determined that subtitle D 
(non-hazardous waste) regulations are ``the most appropriate mechanism 
for ensuring that these wastes disposed of in landfills and surface 
impoundments are managed safely.'' Id. at 32221. There have been no 
subsequent EPA determinations reversing the sound policy and scientific 
underpinnings of this conclusion.
    State environmental regulatory agencies have continually supported 
EPA's conclusion that coal combustion byproducts do not warrant 
hazardous waste regulation. Just last year, the Environmental Council 
of the States (``ECOS'') issued a Resolution agreeing with EPA that the 
disposal of coal combustion byproducts does not warrant hazardous waste 
regulation (http://www.ecos.org/files/3330_file_
Resolution_08_14_CCW.pdf). The States are especially concerned that 
hazardous waste regulation of coal combustion byproducts would threaten 
the survival of the growing market for beneficial use of these 
materials, a concern EPA also expressed in its 2000 regulatory 
determination. See 65 Fed. Reg. at 32232. The Association of State and 
Territorial Solid Waste Management Officials (``ASTWMO'') also has 
commented to EPA that, if the Agency is to develop federal controls for 
coal combustion byproducts, ``clearly it is more appropriate to develop 
them under [RCRA] Subtitle D.'' See ASTWMO Comments on EPA's Notice of 
Data Availability on the Disposal of Coal Combustion Wastes in 
Landfills and Surface Impoundments 
(EPA-HQ-RCRA-2006-0796).
    Thus, the proper regulatory framework for coal combustion waste is 
a non-hazardous waste program under Subtitle D of RCRA, with the States 
retaining the primary role for regulating these materials.
                                 ______
                                 

   Response to questions submitted for the record by Tom FitzGerald, 
         Kentucky Resources Council, Inc., Frankfort, Kentucky

Questions from Representative John P. Sarbanes of Maryland
1.  Currently coal ash is beneficially used in concrete manufacturing, 
        building materials, roadway embankments, development projects, 
        and certain agricultural applications. What specific federal 
        policies would you recommend to expand the current beneficial 
        reuse of coal ash?
    There are a number of legitimate beneficial uses for coal 
combustion ash, including those mentioned specifically in Congressman 
Sarbanes' question. There have also been, due to the absence of an 
effective and uniform national regulatory framework for management of 
the various coal combustion wastestreams (including fly and bottom 
ash), numerous instances in which ``beneficial reuses'' have 
undermanaged the coal combustion wastes relative to their potential 
environmental risks, and where activity more in the nature of disposal 
has been mischaracterized as ``beneficial reuse'' in order to avoid 
more rigorous disposal obligations.
    One dubious ``beneficial reuse'' is the backhauling and land 
disposal of coal combustion ash in mine works. Coal combustion wastes 
are being backhauled and disposed, or ``beneficially reused,'' in mine 
workings (including both underground mine voids and more commonly, in 
surface mine backfills or spoil/mine waste fills) not because of the 
inherently beneficial or desirable attributes of the wastes relative to 
other backfill materials, or the lack of alternative locations 
available to utilities and non-utility customers for coal combustion 
waste disposal. Rather, such use and disposal is occurring because the 
coal companies offer the backhauling and disposal as a ``service'' or 
incentive in order to attract buyers for their coal in an increasingly 
competitive marketplace. Absent federal intervention to establish 
appropriate regulatory benchmarks for characterization and management 
of the wastes based on their intended end use or disposal, the 
competitive forces of the electric utility marketplace will continue to 
result in a parochial failure of the individual states to effectively 
control the disposal of CCW, and will increase pressure on coal 
companies to remain ``competitive'' with each other, and with other 
coalfields across the nation, by offering the ultimate ``out of sight, 
out of mind'' solution to the generation of the coal combustion waste--
indiscriminate blending in mine backfill.
    What is known concerning the potential toxicity of the leachate 
from coal combustion ash suggests that a general federal floor of 
management standards is needed. As improvements continue to be achieved 
in both pre- and post-combustion scrubbing and capture of particulates 
and metals, we will of necessity change the composition and increase 
the potential toxicity of the wastes and leachate.
    The proper management of CCW is essential for protection of human 
health and the environment. Adequate and comprehensive safeguards will 
prevent trafficking in environmental contamination by removing the 
incentive for those more interested in currying market share and short-
term economic gain rather than the long-term public interest to 
undermanage the wastes.
    There is good reason to insist that prior to approving coal 
combustion wastes for beneficial reuse, that appropriate 
characterization of the wastes be conducted for both short- and long-
term leaching potential. These wastes contain a number of constituents 
of potential environmental and public health concern.
    According to the EPA Report Wastes from the Combustion of Coal by 
Electric Utility Power Plants, EPA/530-SW-88-002:
    The primary concern regarding the disposal of wastes from coal-
fired power plants is the potential for waste leachate to cause ground-
water contamination. Although most of the materials found in these 
wastes do not cause much concern (for example, over 95 percent of ash 
is composed of oxides of silicon, aluminum, iron and calcium), small 
quantities of other constituents that could potentially damage human 
health and the environment may also be present.
    These constituents include arsenic, barium, cadmium, chromium, 
lead, mercury and selenium. At certain concentrations these elements 
have toxic effects.

Id., at ES-4.
    While the findings of the EPA Report and review of industry-
generated studies indicated generally that metals did not leach out of 
coal combustion waste (CCW) at hazardous levels, hazardous levels of 
cadmium and arsenic were found in ash and sludge samples, and boiler 
cleaning wastes sometimes contained hazardous levels of chromium and 
lead. Id.
    While acknowledging that coal combustion wastes (fly ash and 
scrubber sludge) do not usually exhibit sufficiently high toxic 
properties to be classified as ``hazardous'' based on TCLP toxicity 
(meaning they don't leach metals at 100x safe drinking water levels), 
CCW does contain high enough concentrations of leachable toxic elements 
to create significant environmental concern. Boulding, J. Russell, 
Disposal of Coal Combustion Waste in Indiana: An Analysis of Technical 
and Regulatory Issues (1991).
    Among the significant findings of this report, based on extensive 
literature review and analysis of coals burned in Indiana utilities 
(including Kentucky coals), are that:
1.  Neither EP [toxicity] nor TCLP tests provide a good indication of 
        leachability of CCW in natural disposal settings. Long-term 
        leaching tests conducted until equilibrium has been achieved 
        for each element of concern, using a leaching solution that 
        approximated percolating groundwater, would give a more 
        accurate depiction of ground-water contamination potential at a 
        disposal site.
2.  17 potentially toxic elements are commonly present in CCW: 
        aluminum, antimony, arsenic, barium, beryllium, boron, cadmium, 
        chromium, copper, lead, manganese, mercury, molybdenum, nickel, 
        selenium, vanadium, and zinc.
3.  Fluidized bed combustion (FBC) wastes retain volatile and semi-
        volatile elements in the bottom ash to a greater extent than 
        conventional pulverized coal combustion, thus enhancing the 
        leachability of FBC waste elements.
4.  Leachates from coal power plant ash and flue gas desulfurization 
        wastes typically exceed drinking water standards, but by a 
        factor less than hazardous levels (i.e. 100 x DWS). The major 
        leaching studies on CCW indicate that drinking water standards 
        are typically exceeded by CCW ash leachate at a factor of 1.1 
        to 10, and often by a factor greater than 10 for one or more 
        elements.
    The EPA Report and Boulding study indicate that the management of 
CCW must be attuned to the variability of the concentrations of 
potentially toxic elements in the waste, and to the different problems 
presented by disposal sites, and by the type of special waste (i.e. FBC 
v. non-FBC wastes).
    While the EPA Report concluded that CCW need not be regulated under 
RCRA Subpart C as hazardous, but rather that the wastes should continue 
to be regulated under Subpart D as solid wastes. In so recommending, 
EPA determined that while field observations detected off-site 
migration of potentially hazardous constituents from utility waste 
disposal sites, reflecting a potentially larger problem than laboratory 
analyses would suggest, the use of mitigative measures under Subpart D 
such as installation of liners, leachate collection systems, and 
ground-water monitoring systems and corrective action to clean up 
ground-water contamination, would be adequate for protecting public 
health and the environment. The EPA recommendation was predicated on 
the application of such measures to the management of CCW. Id. at ES 4-
5.
    Unfortunately, such measures are not employed in these situations 
where the ash is given to another entity for ``beneficial reuse'' and 
is disposed of as fill.
    Prior to land application of the waste ash, any potential for 
leaching or other environmental release (including dermal or airway 
exposure to metals sorbed to the ash) must be thoroughly considered and 
the material must be determined appropriate for the intended use both 
in the short and the long-term. The testing that most states employ is 
a short-term dilute acid test known as TCLP testing, and is not 
appropriate for most ``beneficial reuse'' scenarios.
    The literature summarized below reflects clearly that TCLP testing 
is insufficient to predict short-and long-term leaching characteristics 
of coal combustion fly and bottom ash used as fill. The use of short-
term batch leaching tests, such as TCLP, EP-Toxicity, SPLP, and ASTM-
D2987 (Shake Extraction) are not necessarily reflective of field 
conditions and long-term leaching potential. According to Ann Kim of 
the National Energy Technology Laboratory, ``[t]he utilization of coal 
combustion by-products (CCB) as bulk fill and mine backfill has raised 
questions about the potential contamination of surface and groundwater. 
. . . Leaching is related to the solubility of a specific compound and 
can be influenced by pH, temperature, complexation, and oxidation/
reduction potential. . . . Regulatory tests and standard methods are 
not necessarily appropriate for leaching tests intended to stimulate 
natural processes.''Kim, CCB Leaching Summary: Survey of Methods and 
Results.''
    The TCLP test method is a batch test developed by EPA in response 
to deficiencies in an earlier test, the Extraction Procedure (EP). The 
test
        was designed as a screening test to consider conditions that 
        may be present in a municipal solid waste (MSW) landfill. It is 
        acetic acid buffered to pH 5 (initial); 20: 1 liquid/solid 
        ratio; particle size reduction to 9.5 mm; equilibrium. The 
        reason it was designed this way was because, under RCRA, EPA is 
        required to regulate as hazardous all wastes that may pose a 
        hazard to human health and the environment if they are 
        mismanaged. . . . co-disposal of industrial solid waste with 
        MSW is considered to be a plausible ``worst-case'' management 
        of unregulated waste.
Helms, U.S. EPA Leach Testing of Coal Combustion Residues.
    As Gregory Helms with the EPA Office of Solid Waste explained, the 
EPA Science Advisory Board commented on the TCLP test method in 1991 
and again in 1999, expressing concern ``about overbroad use of the TCLP 
test.'' Id. The SAB found that TCLP is a screening test that evaluates 
leaching potential under a single set of environmental conditions. The 
SAB has expressed concern over the use of the TCLP when it has been 
applied to determine the leaching potential of wastes in disposal 
settings other than municipal waste co-disposal has been criticized. 
1
---------------------------------------------------------------------------
    \1\ Science Advisory Board, 1999. ``Waste Leachability: The Need 
for Review of Current Agency Procedures''. February 26, 1999. EPA-SAB-
EEC-COM-99-002.
---------------------------------------------------------------------------
    The U.S. EPA utilized a new multi-tiered testing framework in a 
research program designed to evaluate the potential for mercury release 
from various types of coal combustion wastes. 2 The 
alternative framework evaluates the potential leaching of waste 
constituents over a range of values for parameters that affect the 
leaching potential. In explaining the EPA decision to utilize a leach 
testing approach developed by Kosson et al. at Vanderbilt in evaluating 
leaching from coal combustion residues resulting from mercury emissions 
controls, Helms explained that TCLP wasn't used for evaluating coal 
combustion residues from enhanced mercury controls because ``TCLP is 
not technically appropriate'' where the disposal is not co-disposal 
with MSW.
---------------------------------------------------------------------------
    \2\ Kosson, D.S., et al., 2002. ``An Integrated Framework for 
Evaluating Leaching in Waste Management and Utilization of Secondary 
Materials.'' Environmental Engineering Science, v. 19, No. 3. pp. 159-
204.
---------------------------------------------------------------------------
    Other commentators have noted the limitations of the use of TCLP as 
an analytical method for predicting leaching potential of coal 
combustion wastes. Hassett notes that
    The TCLP is often used in a generic manner for the prediction of 
leaching trends of wastes, although the intent of this test was for the 
prediction of leaching under co-disposal conditions in sanitary 
landfills. The application of acidic conditions to predict field 
leaching that can occur under a wide range of conditions may lead to 
false prediction of leaching trends. Additionally, conditions imposed 
on leaching systems by inappropriate leaching solutions may alter the 
distribution of redox species that would be found in the field and, in 
some cases with reactive wastes, 18 hours, as specified in the TCLP and 
other short-term leaching tests, may be an insufficient equilibration 
time. In order for a batch leaching test to be used, in determining 
potential for environmental impact . . . when being used with CCBs, the 
test must take into account the unique properties of the material, 
especially the hydration reactions of alkaline CCBs.

Hassett and Pflughoeft-Hassett, Evaluating Coal Combustion By-Products 
(CCBs) For Environmental Performance.

    Because the tests are not designed for use with CCBs, they do not 
account for several typical reactions in CCBs under hydration. It has 
long been known that laboratory leaching procedures cannot precisely 
simulate field conditions nor predict field leachate concentrations. 
However, with careful application of scientifically valid laboratory 
procedures, it is possible to improve laboratory-field correlations and 
modeling efforts focused on predicting leachate concentrations. Id.
    Hassett recommends the development of a selection of laboratory 
leaching procedures that more closely simulate field management 
scenarios, focusing specifically on technical and scientific variables 
such as the long-term hydration reactions that can impact leachate 
concentrations of several constituents of interest, the means by which 
water contacts the CCB in order to simulate the reduced permeability 
frequently exhibited in CCB utilization applications, the impact of pH 
and other CCB properties on the leachate and on resulting leaching; and 
the prediction of, and changes in, leaching over time. Id. Hassett 
recommends use of Synthetic Groundwater Leaching Procedure with a long-
term leaching (LTL) procedure as a better predictor of leaching under 
field conditions. His work reflects that ``[I]n many applications, the 
extended-time SGLP `has demonstrated trends significantly different 
from TCLP and other commonly used leaching protocols'.''
    The explanation for the differing results and trends between the 
extended-time SGLP and TCLP ``can be explained by the fact that many 
commonly used leaching tests impose conditions different from those in 
a field environment on samples, and, thus, bias data in a manner 
leading to inappropriate interpretation for environmental impact. 
Elements most often affected include arsenic, boron, chromium, 
vanadium, and selenium.'' Id.
    The EPA Report on Characterization of Mercury-Enriched Coal 
Combustion residues from Electric Utilities Using Enhanced Sorbents for 
Mercury Control, EPA/600/R-06/008 (January 2006) further underscores 
both the importance of utilizing proper test methods for 
characterization of these coal combustion wastes, and the trend towards 
increasing potential toxicity of such wastes as air pollution controls 
better capture metals entrained in and released during combustion of 
the coal. Among the observations of the agency were that ``arsenic and 
selenium may be leached at levels of potential concern from CCRs 
generated at some facilities both with and without enhanced mercury 
control technology [and that] further evaluation of leaching or arsenic 
and selenium from CCRs that considers site specific conditions is 
warranted.''
    With respect to the sufficiency of TCLP, EPA noted that leaching 
tests ``focused on a single extraction condition'' would not have 
allowed for an evaluation of the variations in anticipated leaching 
behavior under the anticipated field disposal conditions.
    Reliance on total and TCLP data rather than on laboratory data that 
more accurately and adequately characterizes the leaching potential and 
``nonhazardous'' nature of the wastes over the long-term, places both 
the utility and the regulatory agencies in a position where they cannot 
demonstrate with any degree of confidence that the use of these CCBs 
will not leach constituents of concern at levels of both regulatory and 
environmental concern. As part of any regulatory framework to review 
and approve beneficial reuses of coal combustion wastes, the EPA should 
direct that testing appropriate to the intended end-uses be performed. 
Dynamic testing under a range of conditions will better predict the 
long-term leaching potential of these coal combustion wastes when used 
as fill in conditions where they are not isolated from surface or 
groundwater infiltration.
    Returning to the question, in short, the adoption of a program of 
uniform, comprehensive and appropriate minimum standards for the 
characterization and management of coal combustion wastes both for 
reuse and disposal is the best way to improve the beneficial 
utilization of CCW by weeding out ill-conceived and underprotective 
reuse proposals, and sham reuses that are in the nature of disposal.
2.  Are you aware of any downside in the beneficial reuse of coal ash 
        such as runoff, leaching or diminished structural integrity of 
        the building materials?
    The ``beneficial reuse'' situations of which I am aware include a 
range of uses. In those cases where the materials are incorporated into 
a fixed matrix and become part of a product, such as the use of ash in 
Portland Cement manufacture, the interest of the manufacturer in 
assuring that the blending of ash into the produce will not compromise 
the functional or structural integrity of the material acts to 
constrain, to a certain extent, the negative impact of the material on 
structural integrity or performance.
    Of greater ecological concern in my experience has been the use of 
coal ash (particularly fly ash) as ``fill'' or for backfilling utility 
trenches. In those instances, the unconsolidated or partially 
consolidated disposal of the material can allow groundwater or 
precipitation to leach metals out of the wastes at levels exceeding 
drinking water levels. Numerous instances of groundwater and surface 
water contamination associated with managed disposal have been 
documented, and there is no reason to believe that disposal in unlined 
``fills'' or utility trenches would cause a different outcome in terms 
of the fate and transport of leached metals.
    Documentation of specific instances of contamination associated 
with ``beneficial reuses'' is harder to come by, since one of the 
significant weaknesses in state-lead programs for ``beneficial reuse'' 
is that, while environmental performance standards for protection of 
surface or groundwaters is usually established, no advance testing is 
required, and no groundwater or surface water monitoring of the site of 
the ``reused'' material is required, so that compliance with the 
standards is not demonstrated and violations are not detected. As 
mentioned above, proper testing (appropriate to the disposal or reuse 
conditions) should be a cornerstone of any management framework.
3.  EPA Administrator Jackson has said that she will move aggressively 
        to regulate the disposal of coal combustion wastes. What do you 
        think are the most important elements of a regulatory framework 
        for the disposal of dry coal combustion waste products? How do 
        you think those regulations should be structured?
    KRC believes that any program developed by EPA should be developed 
under the Resource Conservation and Recovery Act and should include:
      Identification of and proper management and disposal of 
other fossil fuel-related wastes that may contain higher levels of 
toxic constituents, such as (1) fluidized bed combustion (FBC) wastes 
that may contain residual unburned organics not associated with typical 
coal ash. Greater scrutiny is warranted for FBC waste, which presents a 
higher potential for leaching elements of concern; (2) wastes generated 
through the firing of hazardous waste fuels and waste oils with or 
without coal; and (3) wastes fired or co-fired with waste tires and 
refuse-derived fuel. Each of these categories adds constituents to the 
combustion process which may increase the hazards of improper disposal 
of the waste, including a range of products of incomplete combustion of 
chlorinated and other synthetic organic compounds that warrant 
extensive analysis, characterization and careful management beyond that 
necessary for coal combustion waste.
      Clarification that coal combustion wastes do not include 
utility wastes such as metal and boiler cleaning wastes, nor other 
wastes generated from power plants beyond those directly resulting from 
combustion of coal and control of emissions from the combustion 
process.
      Screening of all coal combustion wastes for radionuclides 
and management as low-level radioactive wastes in accordance with the 
applicable state and federal laws, where those wastes exhibit activity 
that is above background levels. Coal combustion waste containing 
elevated radionuclides should be classified and managed as 
technologically enhanced low-level radioactive waste.
      Complete characterization of the waste stream(s) proposed 
for land disposal, and assurance that the engineering design of the 
disposal facility or proposed reuse scenario will assure compliance 
with the environmental performance standards (including no 
contamination of aquifers above drinking water standards and no 
increase in groundwater of any constituents above background levels of 
those contaminants). Whenever possible the chemical and physical 
composition of the actual waste stream that will be produced by the 
combustion process at the utility from which the waste will be 
generated, should be used for testing.
      In order to properly design a facility for disposal of 
coal combustion waste, or to demonstrate that reuse will not cause 
environmental harm, the leaching potential must be established by use 
of appropriate modeling of the disposal site, the amount of rainfall 
infiltration, the pH of the waste and associated materials through 
which the rainfall will pass, and a hydrogeologic investigation into 
the location, extent, and characteristics of the surface and 
groundwater systems at the site. As noted above, short-term TCLP 
testing is insufficient to characterize longer term leaching potential, 
and should not be used in any situation except where the coal 
combustion wastes are being co-disposed with mixed municipal waste in a 
Subtitle D landfill.
      Groundwater monitoring must be sufficient to allow for 
prompt detection of leachate migration at the waste site (and not the 
mine) boundary. Monitoring parameters and well locations must be such 
that they are appropriate to the area in which the waste is disposed.
      Blending of mine wastes containing fly ash with spoil in 
the mine backfill, rather than controlled placement of the wastes in a 
designed facility, should be treated as prohibited open dumping.
      A requirement for controlled placement in a discrete, 
properly engineered and lined land disposal facility with groundwater 
monitoring, leachate collection, closure and post-closure care, and 
financial responsibility. When EPA determined that issuance of 
regulations under Subtitle C of RCRA was not necessary to adequately 
manage the environmental risks associated with disposal of coal 
combustion wastes, it premised that determination on the assumption 
that the environmental performance standards and protections of 
Subtitle D would be extended to the management of that industrial waste 
stream.
      Financial responsibility sufficient to assure that proper 
closure and post-closure care is provided in the event of default by 
the facility owner and operator.
      The framework must be a regulatory framework rather than 
asset of ``guidelines.'' The lack of federal minimum standards has 
resulted in uneven state standards and under-regulation of the wastes. 
Kentucky, for example, has more rigorous standard for co-disposal of 
CCW in mines, but extremely weak controls on beneficial reuse and 
disposal in ``ash ponds.'' The lack of federal minimum standards has 
and will continue to result in one-downsmanship and a ``race to the 
bottom'' among the coal states, as companies desirous of securing 
market share from the purchaser of the lion's share of their output, 
the utility industry, offer to backhaul and dispose of coal combustion 
wastes as a package deal.
    Issuance of national guidance is insufficient to assure proper 
management of these wastes, since many states have ``no more 
stringent'' provisions that would prevent states from extending 
regulatory authority over disposal of the wastes to incorporate federal 
guidance, since states can adopt and impose only those standards that 
have been adopted by regulation at the federal level. Also, some states 
cannot under state law impose substantive requirements based on 
``policies.''
    Additionally, the lack of minimum standards penalizes utilities 
that manage wastes under higher standards relative to their brethren 
who allow disposal of coal wastes by the coal industry either for 
``beneficial'' uses or as mine fill.
    Finally, the lack of national regulatory standards sufficient to 
assure protection of land, air and water resources heightens conflicts 
between host communities and the utility and coal industry due to 
concerns with under-regulation of the coal combustion wastes relative 
to their potential to leach metals and other constituents at levels 
posing environmental or health risks.
    I have attached a March 2, 2009 letter that outlines in more detail 
what I believe to be necessary components of an appropriate regulatory 
program for coal combustion wastes.
    Thank you for the opportunity to address these issues, and for the 
hospitality extended me during the February 12, 2009 hearing. Lease let 
me know if you need further information.
    [NOTE: The letter submitted for the record has been retained in the 
Committee's official files.]
                                 ______
                                 

 Response to questions submitted for the record by J. Davitt McAteer, 
   Vice President for Sponsored Programs, Wheeling Jesuit University

Questions from Representative John P. Sarbanes of Maryland
 Currently coal ash is beneficially used in concrete manufacturing, 
        building materials, roadway embankments, development projects, 
        and certain agricultural applications, what specific federal 
        policies would you recommend to expand the current beneficial 
        reuse of coal ash?
    Coal ash beneficial use could be increased especially in road 
construction, roadway expansion and development projects. Specific 
federal guidelines relating to Department of Transportation materials 
use requirements, especially under the stimulus Recovery and 
Reinvestment Act of 2009 spending plans, could be modified as follows: 
Coal Combustion Beneficial (CBB) material shall compose at minimum 35% 
of cement mixtures for any project undertaken under the stimulus 
Recovery and Reinvestment Act of 2009, and CBB's shall compose at least 
25% of all construction, flowable fills, base and sub-base materials 
used under the Act. These regulations should also specifically require 
environmental impact analyses of such increased use as an integral part 
of increased uses, and studies of such uses should include a review of 
environmental impacts in other countries.
 Are you aware of any downside in the beneficial reuse of coal ash such 
        as runoff, leaching or diminished structural integrity of the 
        building materials?
    Inadequate information currently exists relating to potential 
downsides of increases in beneficial uses, evidence appears to support 
increases in beneficial uses, but as mentioned above, analysis of 
potential environmental impacts should be made part of the increased 
beneficial use package. Each state shall develop criteria for Resource 
Conservation and Recovery Act's (RCRA), Subpart C, hazardous waste 
disposal and Subpart D, beneficial use, these beneficial uses be 
accomplished by documentation, environmental safeguards and report 
requirements.
 EPA Administrator Jackson has said that she will move aggressively to 
        regulate the disposal of coal combustion waste. What do you 
        think are the most important elements of a regulatory framework 
        for the disposal of dry coal combustion waste products? How do 
        you think those regulations should be structured?
    Any regulatory framework for the disposal of dry coal combustion 
waste products should contain several elements, as was mentioned in my 
testimony. At a minimum, this should include liners, long-term ground 
and surface water monitoring, citizen or community involvement, 
provisions for providing ongoing safety protection such as emergency 
evacuation plans, requirements for providing public information on 
spills, incidents and appropriate emergency contact information. For 
examples, see www.coalimpoundment.org.
                                 ______
                                 
    [The documents listed below have been retained in the 
Committee's official files.]
      Bird, Cathie, Chair, Strip-mine Issues Committee, 
Save Our Cumberland Mountains (SOCM). Letter submitted for the 
record
      Conrad, Gregory E., Executive Director, 
Interstate Mining Compact Commission, Statement submitted for 
the record
      FitzGerald Attachment 1--``Mine Placement of Coal 
Combustion Wastes''--Testimony before the National Academy of 
Sciences dated April 19, 2005
      Gruzesky--Attachment 1--151.293 Certificates of 
inspection
      Gruzesky--Attachment 2--151.295 Regular 
inspections of dams and reservoirs
      Gruzesky--Attachment 3--151.100 Definitions
      Gruzesky--Attachment 4--401 KAR 4:030. Design 
criteria for dams and associated structures
      Gruzesky--Attachment 5--09RA JOINT RESOLUTION 
relating to Emergency Action Plans for high-hazard-potential 
dams.
      McAteer--Attachment 1--NID Ash Impoundment 
Locations--Map
      McAteer--Attachment 2--Coal Impoundment Program 
Summary--Power Point presentation submitted for the record
      National Mining Association document entitled 
``Coal Ash at Coal Mines--Placement, Standards, Controls and 
Uses'' submitted for the record

                                 
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