[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
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
or
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----------
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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
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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