[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
COAL COMBUSTION WASTE STORAGE AND WATER QUALITY
=======================================================================
(111-27)
HEARINGS
BEFORE THE
SUBCOMMITTEE ON
WATER RESOURCES AND ENVIRONMENT
OF THE
COMMITTEE ON
TRANSPORTATION AND INFRASTRUCTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
----------
APRIL 30, 2009
----------
Printed for the use of the
Committee on Transportation and Infrastructure
COAL COMBUSTION WASTE STORAGE AND WATER QUALITY
COAL COMBUSTION WASTE STORAGE AND WATER QUALITY
=======================================================================
(111-27)
HEARING
BEFORE THE
SUBCOMMITTEE ON
WATER RESOURCES AND ENVIRONMENT
OF THE
COMMITTEE ON
TRANSPORTATION AND INFRASTRUCTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
APRIL 30, 2009
__________
Printed for the use of the
Committee on Transportation and Infrastructure
----------
U.S. GOVERNMENT PRINTING OFFICE
49-495 PDF WASHINGTON : 2009
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800;
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Washington, DC 20402-0001
COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
JAMES L. OBERSTAR, Minnesota, Chairman
NICK J. RAHALL, II, West Virginia, JOHN L. MICA, Florida
Vice Chair DON YOUNG, Alaska
PETER A. DeFAZIO, Oregon THOMAS E. PETRI, Wisconsin
JERRY F. COSTELLO, Illinois HOWARD COBLE, North Carolina
ELEANOR HOLMES NORTON, District of JOHN J. DUNCAN, Jr., Tennessee
Columbia VERNON J. EHLERS, Michigan
JERROLD NADLER, New York FRANK A. LoBIONDO, New Jersey
CORRINE BROWN, Florida JERRY MORAN, Kansas
BOB FILNER, California GARY G. MILLER, California
EDDIE BERNICE JOHNSON, Texas HENRY E. BROWN, Jr., South
GENE TAYLOR, Mississippi Carolina
ELIJAH E. CUMMINGS, Maryland TIMOTHY V. JOHNSON, Illinois
ELLEN O. TAUSCHER, California TODD RUSSELL PLATTS, Pennsylvania
LEONARD L. BOSWELL, Iowa SAM GRAVES, Missouri
TIM HOLDEN, Pennsylvania BILL SHUSTER, Pennsylvania
BRIAN BAIRD, Washington JOHN BOOZMAN, Arkansas
RICK LARSEN, Washington SHELLEY MOORE CAPITO, West
MICHAEL E. CAPUANO, Massachusetts Virginia
TIMOTHY H. BISHOP, New York JIM GERLACH, Pennsylvania
MICHAEL H. MICHAUD, Maine MARIO DIAZ-BALART, Florida
RUSS CARNAHAN, Missouri CHARLES W. DENT, Pennsylvania
GRACE F. NAPOLITANO, California CONNIE MACK, Florida
DANIEL LIPINSKI, Illinois LYNN A WESTMORELAND, Georgia
MAZIE K. HIRONO, Hawaii JEAN SCHMIDT, Ohio
JASON ALTMIRE, Pennsylvania CANDICE S. MILLER, Michigan
TIMOTHY J. WALZ, Minnesota MARY FALLIN, Oklahoma
HEATH SHULER, North Carolina VERN BUCHANAN, Florida
MICHAEL A. ARCURI, New York ROBERT E. LATTA, Ohio
HARRY E. MITCHELL, Arizona BRETT GUTHRIE, Kentucky
CHRISTOPHER P. CARNEY, Pennsylvania ANH ``JOSEPH'' CAO, Louisiana
JOHN J. HALL, New York AARON SCHOCK, Illinois
STEVE KAGEN, Wisconsin PETE OLSON, Texas
STEVE COHEN, Tennessee
LAURA A. RICHARDSON, California
ALBIO SIRES, New Jersey
DONNA F. EDWARDS, Maryland
SOLOMON P. ORTIZ, Texas
PHIL HARE, Illinois
JOHN A. BOCCIERI, Ohio
MARK H. SCHAUER, Michigan
BETSY MARKEY, Colorado
PARKER GRIFFITH, Alabama
MICHAEL E. McMAHON, New York
THOMAS S. P. PERRIELLO, Virginia
DINA TITUS, Nevada
HARRY TEAGUE, New Mexico
(ii)
?
Subcommittee on Water Resources and Environment
EDDIE BERNICE JOHNSON, Texas, Chairwoman
THOMAS S. P. PERRIELLO, Virginia JOHN BOOZMAN, Arkansas
JERRY F. COSTELLO, Illinois DON YOUNG, Alaska
GENE TAYLOR, Mississippi JOHN J. DUNCAN, Jr., Tennessee
ELLEN O. TAUSCHER, California VERNON J. EHLERS, Michigan
BRIAN BAIRD, Washington FRANK A. LoBIONDO, New Jersey
TIMOTHY H. BISHOP, New York GARY G. MILLER, California
RUSS CARNAHAN, Missouri HENRY E. BROWN, Jr., South
STEVE KAGEN, Wisconsin Carolina
DONNA F. EDWARDS, Maryland TODD RUSSELL PLATTS, Pennsylvania
SOLOMON P. ORTIZ, Texas BILL SHUSTER, Pennsylvania
PHIL HARE, Illinois MARIO DIAZ-BALART, Florida
DINA TITUS, Nevada CONNIE MACK, Florida
HARRY TEAGUE, New Mexico LYNN A WESTMORELAND, Georgia
ELEANOR HOLMES NORTON, District of CANDICE S. MILLER, Michigan
Columbia ROBERT E. LATTA, Ohio
MICHAEL E. CAPUANO, Massachusetts ANH ``JOSEPH'' CAO, Louisiana
GRACE F. NAPOLITANO, California PETE OLSON, Texas
MAZIE K. HIRONO, Hawaii
HARRY E. MITCHELL, Arizaon
JOHN J. HALL, New York
PARKER GRIFFITH, Alabama
BOB FILNER, California
CORRINE BROWN, Florida
JAMES L. OBERSTAR, Minnesota
(Ex Officio)
(iii)
CONTENTS
Page
Summary of Subject Matter........................................ vi
TESTIMONY
Breen, Barry, Acting Assistant Administrator, U.S. Environmental
Protection Agency, Office of Solid Waste and Emergency
Response, accompanied by Michael Shapiro, Acting Assistant
Administrator, U.S. Environmental Protection Agency, Office of
Enforcement and Compliance Assurance, and Catherine McCabe,
Acting Assistant Administrator, U.S. Environmental Protection
Agency, Office of Enforcement and Compliance Assurance......... 4
Goss, David, Former Executive Director, American Coal Ash
Association, Aurora, Colorado.................................. 23
McManus, John M., Vice President of Environmental Services,
American Electric Power, Columbus, Ohio, testifying on behalf
of Edison Electric Institute and Utility Solid Waste Activities
Group.......................................................... 23
Schaeffer, Eric, Executive Director, Environmental Integrity
Project, Washington, D.C....................................... 23
Volz, Dr. Conrad, Assistant Professor of Environmental and
Occupational Health, Director, Center for Healthy Environments
and Communities, University of Pittsburgh, Pittsburgh,
Pennsylvania................................................... 23
Wilson, Hon. Shari, Secretary, Maryland Department of the
Environment.................................................... 4
PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS
Mitchell, Hon. Harry E., of Arizona.............................. 40
PREPARED STATEMENTS SUBMITTED BY WITNESSES
Breen, Barry..................................................... 41
Goss, David...................................................... 74
McManus, John M.................................................. 80
Schaeffer, Eric.................................................. 185
Volz, Dr. Conrad................................................. 223
Wilson, Hon. Shari............................................... 284
SUBMISSIONS FOR THE RECORD
Breen, Barry, Acting Assistant Administrator, U.S. Environmental
Protection Agency, Office of Solid Waste and Emergency
Response, responses to questions from the Subcommittee......... 49
Frank, Joyce K., Acting Associate Administrator, U.S.
Environmental Protection Agency, Office of Congressional and
Intergovernmental Relations, written statement................. 72
McManus, John M., Vice President of Environmental Services,
American Electric Power, Columbus, Ohio,.......................
Responses to questions from Rep. Boozman................... 86
Supplemental documents with Subcommittee................... 121
Responses to questions from Rep. Johnson of Texas.......... 164
Schaeffer, Eric, Executive Director, Environmental Integrity
Project, Washington, D.C.,.....................................
Supplemental testimony..................................... 195
Supplemental documents with Subcommittee................... 222
ADDITIONS TO THE RECORD
Department of Natural Resources, State of Wisconsin, Al Shea,
Administrator, Air and Waste Division, written statement....... 287
Tampa Electric Company, Charles R. Black, President, written
statement...................................................... 290
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
HEARING ON COAL COMBUSTION WASTE STORAGE AND WATER QUALITY
----------
Thursday, April 30, 2009
House of Representatives
Committee on Transportation and Infrastructure,
Subcommittee on Water Resources and Environment,
Washington, DC.
The Subcommittee met, pursuant to call, at 10:00 a.m., in
Room 2167, Rayburn House Office Building, the Honorable Eddie
Bernice Johnson [Chairwoman of the Subcommittee] presiding.
Ms. Johnson. I would like to call the Subcommittee to order
this morning. We will be holding a hearing on coal combustion
waste storage and water quality.
A month ago, this Subcommittee met to evaluate the impacts
of the coal ash slide at the Tennessee Valley Authority's
Kingston power plant. In that hearing, I noted that this issue
was going to be something that this panel would be revisiting
in the future. Today's hearing is a first step towards
fulfilling that commitment.
In March we learned about the implications of Federal
neglect. The collapse of the Tennessee Valley Authority's
Kingston coal ash impoundment was not an act of God, nor was it
the result of random fate. The release of millions of cubic
yards of coal sludge onto a formerly beautiful landscape and
the desiccation of a thriving river were the predictable
results of regulatory neglect and ineffective Federal
oversight. In short, Federal standards for structural integrity
would have gone a good way towards preventing an incident that
has impacted the lives of thousands in Tennessee.
Our hearing in March forced us to ask the question: How
many other Kingstons are out there? The Kingston spill opened
this Subcommittee's eyes to the presence of hundreds of similar
facilities around the Country. This is not just a Kingston
problem or a Tennessee Valley Authority issue; it is a national
problem.
A simple question therefore arises: How safe are these coal
ash storage facilities? As we learn more about these storage
sites, it becomes clearer that there are some significant
public safety, human health, and ecological risks associated
with many of them.
Even if these storage facilities do not rupture, they can
threaten grave human health concerns. Because of the propensity
of certain types of these facilities to leach contaminants,
nearby residents face significantly higher risks of developing
cancer or suffering from other harmful effects from
contaminated groundwater and surface water.
These coal ash storage facilities aren't just statistical
threats of course. In recent years, the Environmental
Protection Agency has demonstrated damage to groundwater or
surface water from a number of these sites. Indeed, a number of
these ``damage'' or ``potential damage'' sites are located in
the districts of Members of this Committee. At sites in
Alabama, Wisconsin, and Illinois, the EPA has noted instances
where groundwater and surface water contamination has taken
place, likely as a result of irresponsible coal ash storage
practices. These violations of the law and threats to human
health must be put to an end.
It should be obvious by now that this hearing is about the
impacts of coal ash storage on human health and the
environment. Any insinuation that this hearing is for anything
otherwise would seem to be an effort to distract attention away
from the harms that are taking place. We are holding this
hearing today to ensure that the true costs of burning coal,
and its subsequent disposal, are not passed downstream.
Families should not have to bear the brunt of pollution to cut
corners on costs. Cancer should not be the price borne by
working men and women for reckless coal ash disposal.
That a variety of human health risks have been shown in EPA
studies, and in that EPA has demonstrated actual damages raises
a number of questions about the regulation of coal combustion
waste. As such, this hearing is as much about EPA's past and
future role on this issue as anything else.
By the time this hearing is complete, I hope to have
answers or commitments on a number of issues:
One, has EPA initiated enforcement actions or required
corrective actions at all of the facilities identified in its
2007 Damage Assessment in which damage has been proven?
Two, does EPA stand by its findings that surface
impoundments, especially unlined surface impoundments, cause a
grave threat to water quality, aquatic ecosystems, and human
health?
Three, in addition to investigating structural integrity,
will EPA make a commitment to administrative action that will
result in a minimization of risks to water quality?
I, along with other Members of the Subcommittee, look
forward to what will be an illuminating hearing today.
I thank you for being here and I now recognize the Ranking
Member, Mr. Boozman of Arkansas.
Mr. Boozman. Thank you, Madam Chair. I appreciate our
witnesses taking the time to be with us today.
Today, the Subcommittee continues its review of the
potential water quality impacts of coal ash storage. This
hearing continues what is becoming an all too familiar refrain
from the Committee on Transportation and Infrastructure: the
declining state of our Nation's infrastructure.
While public and private utilities have safely operated
approximately 600 coal ash sites for decades, with only a few
documented failures, the spill at the TVA Kingston site once
again reminded us of the damages that can occur when our
infrastructure is taken for granted. Homes were rendered
uninhabitable, water mains and gas lines were ruptured, and
nearby neighborhoods had to be evacuated.
Thankfully, no one was hurt. But it is my sincere hope that
what occurred at the Kingston coal ash disposal site was an
isolated incident.
Additional laws or Federal regulations would probably not
have prevented this terrible accident. New laws or regulations
will not replace homes, family treasures, heirlooms, or other
personal property lost as a result of the Kingston spill. Even
if coal ash was regulated as a hazardous material under
Subtitle C of the Resource Conservation Recovery Act, it is
unlikely this spill or others would have been prevented.
In fact, the Environmental Council of the States recently
reiterated its position that the States, not the Federal
Government, should be responsible for the regulation of coal
ash as a nonhazardous waste. When Carol Browner was the
Administrator of the EPA during the Clinton Administration, she
determined, in May 2000, that fossil fuel combustion waste
should not be regulated as hazardous waste. In addition, in
2006, the EPA also determined that mercury is retained by the
resulting coal combustion residents and is unlikely to be
leached at levels of environmental concern.
When managed properly, coal combustion waste can be
beneficially reused for construction materials used on our
highways, bridges, buildings, and other infrastructure
projects. This reuse has resulted in significant economic,
social, and environmental benefits. Since 2000, it is estimated
that the recycling of coal combustion waste has displaced more
than 120 million tons of greenhouse gases. During that same
time, more than 400 million tons of coal combustion waste had
been recycled in not just construction materials, but in mine
reclamation, agriculture applications, soil mediation, and many
other everyday uses.
Recently, it has come to light that the coal combustion
waste was a key component in the construction materials used in
the I-35 bridge replacement project in Minnesota. In addition,
coal combustion waste was used in the construction of the
Ronald Reagan Building here in Washington, D.C., which houses
many of the EPA offices.
Coal combustion waste can be properly managed to reduce its
risk and turn much of it into beneficial products. We must be
careful that we do not needlessly over-regulate coal combustion
waste. If we try to regulate it has a hazardous substance,
recyclers are afraid to handle it and make good use of this
material.
I appreciate you, Madam Chair, Mrs. Johnson, for holding
this important hearing, and, again, I appreciate the fact of
the witnesses here and look forward to their testimony. Thank
you very much. I yield back.
Ms. Johnson. Thank you very much.
On our first panel, we are pleased to have witnesses from
both EPA and the State of Maryland. Testifying first is EPA's
Acting Administrator for Solid Waste and Emergency Response,
Mr. Barry Breen. Accompanying Mr. Breen is EPA's Acting
Administrator for Water, Michael Shapiro, and the Acting
Administrator for Enforcement and Compliance Assurance,
Catherine McCabe. Mr. Shapiro and Ms. McCabe will be available
for questions.
Our second witness is Maryland's Secretary for the
Environment, Shari Wilson.
We welcome all of you. Your full statements will be placed
in the record, and we ask if you would try to limit your oral
testimony to five minutes.
I will now call on Mr. Breen.
TESTIMONY OF BARRY BREEN, ACTING ASSISTANT ADMINISTRATOR, U.S.
ENVIRONMENTAL PROTECTION AGENCY, OFFICE OF SOLID WASTE AND
EMERGENCY RESPONSE, ACCOMPANIED BY MICHAEL SHAPIRO, ACTING
ASSISTANT ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY,
OFFICE OF ENFORCEMENT AND COMPLIANCE ASSURANCE, AND CATHERINE
MCCABE, ACTING ASSISTANT ADMINISTRATOR, U.S. ENVIRONMENTAL
PROTECTION AGENCY, OFFICE OF ENFORCEMENT AND COMPLIANCE
ASSURANCE; AND THE HONORABLE SHARI WILSON, SECRETARY, MARYLAND
DEPARTMENT OF THE ENVIRONMENT
Mr. Breen. Thank you, Madam Chairman and Members of the
Subcommittee. As you said, I am the Acting Assistant
Administrator for the EPA's Office of Solid Waste and Emergency
Response. Thank you for the opportunity to be with you this
morning.
EPA's efforts involve multiple offices within the agency,
as you observed, and with me today are two of my EPA
colleagues, Mike Shapiro, the Acting Assistant Administrator
for the Office of Water, and Catherine McCabe, the Acting
Assistant Administrator for the Office of Enforcement and
Compliance Assurance.
The testimony today will provide a brief history of EPA's
regulatory efforts on coal combustion residuals and an update
of our current rulemaking activities. I will summarize my
testimony, but, as you indicated, if you would include the full
testimony in the record, we would be grateful.
Coal combustion residuals, or CCR, are one of the largest
waste streams generated in the United States. Approximately 131
million tons were generated in 2007. In 2007, approximately 36
percent was disposed in landfills, 21 percent was disposed of
in surface impoundments, 38 percent was beneficially reused,
and 5 percent was used as mine fill.
The beneficial use of coal combustion residuals provides
environmental benefits in terms of energy savings, greenhouse
gas emission reduction, and resource conservation. In 2007, 56
million of the 131 million tons generated were reused. However,
as we know, coal combustion residuals typically contain a broad
range of metals, including arsenic, selenium, and cadmium; and,
due to the mobility of these metals and the large size of a
typical disposal unit, metals, especially arsenic, may leach at
levels of potential concern from impoundments and unlined
landfills.
In May 2000, EPA issued its regulatory determination on
waste from the combustion of fossil fuels. At that time, we
conveyed EPA's determination that these residuals did not
warrant regulation as hazardous waste under Subtitle C of the
Resource Conservation and Recovery Act. But we also concluded
that Federal regulation as a non-hazardous waste under Subtitle
D of RCRA was warranted.
After that 2000 regulatory determination, EPA continued to
collect new information and conduct additional analyses. In
August 2007, we made this information available for public
comment through a Notice of Data Availability. The comment
period closed in February 2008 and we received nearly 400
comments. We commissioned a peer review of the draft risk
assessment, and that peer review was finished in September 2008
The failure of the ash disposal cell at the TVA's Kingston
plant in December served as a wake-up call to many about the
importance of our coal combustion residual efforts, and it
highlighted the issue of impound stability. Our previous
regulatory efforts had not included this element. But we are
now analyzing and considering whether to specifically include
impoundment integrity as part of our CCR regulatory
development.
We are committed to issuing proposed regulations for the
management of coal combustion residuals by electric utilities
by December 2009. We are currently evaluating a number of
different approaches, including revising our May 2000
regulatory determination. As part of our efforts, we are
reviewing all the information we have, including all of the
comments received, from our 2007 Notice of Data Availability
and the peer review of the risk assessment.
The spill also provided the impetus for our efforts to
assess the stability of impoundments and other management units
that contain wet-handled coal combustion residuals. We are
gathering facility information and performing site visits or
other independent assessments of other State and regulatory
agency inspection reports and appropriate follow-up.
In March, we sent out information request letters under the
Superfund statute to 162 facilities and 61 utility
headquarters. We have all of the responses but two of the
individual facility responses, and we will be following up with
those, as well as an additional 43 facilities that we have
since identified. We plan to begin our facility field work in
May, next month
In addition to the ongoing work of our office, the Office
of Solid Waste and Emergency Response, the Office of Water has
its own efforts underway regarding water discharges from
surface impoundments and is currently studying whether national
effluent limitation guidelines for power plants need to be
updated. EPA is also evaluating disposal practices at coal-
fired power plants to determine if these facilities are in
compliance with existing Federal environmental laws, and we
will take enforcement action, where appropriate, to address
serious violations.
That concludes my prepared remarks. Thank you for the
opportunity to appear, and my colleagues and I would be pleased
to answer your questions as we proceed.
Ms. Johnson. Thank you very much.
Ms. Wilson.
Ms. Wilson. Good morning, Chairwoman Johnson and Members of
the Committee. It is a pleasure to be here. My name is Shari
Wilson, and I am the Secretary of the Maryland Department of
the Environment. We are pleased to have the opportunity to
share with you an overview of our experience and our regulatory
program for coal combustion waste.
By way of background in Maryland, 60 percent of our energy
comes from coal-fired power. Our Maryland plants generate
approximately 2 million tons of coal combustion waste product
annually. With the implementation of more stringent air quality
requirements over the next several years to improve air quality
in Maryland, we expect the volume of material of coal
combustion waste to double, so our material will double by
2013. We are also active supporters of the notion of the reuse
of this material. There are many safe, beneficial reuses.
In Maryland, we have essentially three types of storage or
disposal. We have an active mine reclamation program, so this
material can be used in the reclamation of coal mines and the
reclamation of surface mines, and then our third type of
disposal is a straight-up landfill type disposal. We do not
have the liquid waste lagoons, such as Tennessee had and
experienced with that spill, yet, we think our experience with
this product is important to share.
In 2007, with a new State administration in place, we began
to review the requirements in the State for the disposal of
this material, both through mine reclamation and straight-up
disposal. Concurrently with that review, we were faced with two
contamination situations: one surface mine reclamation site,
where over 5 million tons of material was disposed of, was
resulting in groundwater contamination and, very unfortunately,
that resulted in four residential wells that were impacted.
As a result of that situation, the State brought the third
largest water enforcement case in State history, required
remediation of the site and immediate provision of an
alternative water supply and eventual connection to a public
water supply for the homes that were impacted.
There is a second ongoing enforcement action related also
to surface disposal that is resulting in impacts to surface
water.
So while we don't have the liquid slurry type of lagoons in
storage, we have experienced contamination problems from the
type of disposal that we did have.
We made a decision in 2007 that, since EPA had not moved
forward to set standards, that the State would, and since that
time, through an outstanding effort by our technical staff and
with the support of advocates and the regulated community, we
have put in place a series of requirements that I wanted to
share with you this morning.
For surface mine reclamation and landfill type disposal
situations, we have put in place new permit requirements that
are basically equivalent to modern industrial landfill
standards, and we have done that through State regulation.
We have improved the requirements related to the use of
coal combustion waste in coal mine reclamation, mostly enhanced
groundwater monitoring to make sure that that process is safe.
We have also put in place a reporting requirement for our
generators of coal combustion waste, so we receive now annual
reports on the volume of material that is generated and the
characteristics of that material, which is very important for
the disposal scheme. There are many types of coal combustion
waste. The proper disposal is determined in large part by the
type of coal that was burned, so it is important to know
exactly the type of material that we are dealing with.
And, most recently, during the past State legislative
session, the General Assembly of Maryland has authorized the
Department of the Environment to place a per ton fee on the
generation of this material, specifically to pay for those
regulatory efforts I just mentioned. We do not have a funding
source for that activity, and this will sort of close the loop
and allow us to fully move forward implementing this new
regulatory scheme.
We have some future steps that we are planning for this
year. We are going to put in place regulatory requirements for
the transportation of the material and, also, we are going to
put in place requirements to define the safe, beneficial reuses
of the material. Our goal is to reuse the material where it can
be done safely, but we would like to put in place standards
setting forth where that is practical and safe.
We have been a strong advocate for the fact that there
should be Federal standards for the disposal of coal combustion
waste. We testified before the Subcommittee on Energy and
Mineral Resources, last summer, that there should be some
minimum Federal threshold. We are very encouraged by EPA's
actions to move forward and we look forward to working with
them and providing our experiences and opinions on the best way
to do that.
For your purposes this morning, though, I wanted to
reiterate that, from our perspective, it is not only the liquid
waste that needs to be controlled, but it is also other types
of disposal, as well as beneficial reuse. So we really
appreciate your taking the time this morning to address these
issues. We appreciate the opportunity to share Maryland's
experience. We have enjoyed great support from Congresswoman
Edwards, and we appreciate her interest in the issue, and we
would be happy to try to answer any questions you may have.
Thank you very much.
Ms. Johnson. Thank you very much. Let me just ask you,
given the experience of groundwater contamination in Gambrills,
does the State of Maryland believe that the coal ash contains
hazardous substances?
Ms. Wilson. As I said earlier, there are distinct types of
coal ash, and the toxicity levels of that ash are determined in
part by the type of coal that is burned to generate the power.
In the case of the Gambrills contamination, the groundwater
contamination, yes, we were concerned that there were
constituents of hazardous substances that could possibly leach
to monitoring wells. So the answer to that question would be
yes.
We do not, however, believe that it is necessary to
regulate coal combustion waste as a hazardous waste. By and
large, the data that we have shows that it is not a hazardous
waste.
Ms. Johnson. It is not a hazardous waste, but sometimes it
contains hazardous substances.
Ms. Wilson. Yes.
Ms. Johnson. Give me an idea of how you think it should be
dealt with.
Ms. Wilson. Well, we believe that the disposal needs to be
controlled through essentially requirements that are similar to
those that we use for landfills. So, in other words, in
Maryland we did not have, at the Gambrills site, we did not
have a liner in place for the disposal of that material.
Clearly, we know now that that is required and our new
standards do in fact require that.
Based on our technical staff's assessment of the coal
combustion waste and, again, the range of different types of
coal combustion waste, it is essential to have proper controls
in place to ensure that, as rain falls, materials are not
leaching through and reaching groundwater. We know from our
experience in regulating both municipal solid waste landfills
and industrial landfills that it is possible to put those types
of controls in place and to prevent that leaching, which is the
goal here, in our view.
Ms. Johnson. Thank you.
Mr. Breen, at what date did EPA determine that it would
develop regulations for coal ash storage and disposal?
Mr. Breen. In May 2000, we determined that it was
appropriate to move forward in developing regulations, and we
published that regulatory determination then; and, of course,
we have continued to reevaluate that. Then, of course, after
the Kingston spill in December, it brought a new focus to the
kind of regulation that would be needed.
Ms. Johnson. So there are currently regulations in place?
Mr. Breen. No, ma'am, not at the Federal level, and not
under RCRA. There are probably dam regulations that the EPA
does not administer, but not at the Federal level under RCRA.
Ms. Johnson. So nothing really has happened in EPA the last
eight years.
Mr. Breen. In May 2000 we made the regulatory
determination, but we also indicated it was worth continued
evaluation, and several things have happened since then. There
was a National Academy of Sciences study that was finished in
2006 on the mine filling of coal combustion residuals. In
addition, we re-prepared and revised the risk assessment for
the material and we revisited the damage cases, and we
published that material in August 2006 for public comment. We
took public comment and got about 400 comments, and then we put
the draft risk assessment out for peer review, and that was
finished in approximately September 2008.
Ms. Johnson. So, in eight years, hardly anything happened,
and now you are beginning to look at--do you believe that delay
has resulted in any health consequences?
Mr. Breen. That is hard to know. It is also hard to know
what would have happened, of course, but it is a complicated
area, both factually and legally, and the steps we have to go
through to prepare a rulemaking are those that involve
preparing a careful record.
Ms. Johnson. So it is cumbersome.
Mr. Breen. Yes, ma'am, of course.
Ms. Johnson. So, because it is cumbersome, you just ignored
it.
Mr. Breen. No, ma'am.
Ms. Johnson. Tell me what you did to----
Mr. Breen. From May 2000 to now? The National Academy of
Sciences study, took several years, and it involved some of the
best scientists available to advise not just the EPA, but to
advise Federal agencies and the Congress generally. The draft
risk assessment needed to be prepared and the peer review on
that, by top scientists as well; and then the damage cases, the
review of now, we think, 24 proven damage cases and the
assembly of the facts on those; and then the public comment on
all of that material.
Ms. Johnson. So you are saying that you just had discussion
with some of the scientists and nothing else. What were the
findings?
Mr. Breen. The National Academy of Sciences found that
enforceable Federal standards should be established for mine
filling, and it listed several possibilities, some within EPA's
jurisdiction and some within the Office of Surface Mining
jurisdiction.
But I think it is also fair to say that there are other
beneficial reuses as well, and one of the things we have done
is explore what beneficial reuses can safely be made, such as
in drywall, for example, or in some cement and concrete
applications; and that work has gone forward as well, in
addition to the draft risk assessment that involved a careful
study of what the risks are. There are several metals of
concern and each of them needs to be thought through.
Ms. Johnson. What causes it to be eight years with few
results?
Mr. Breen. Of course, the results are what they are, and it
just takes time.
Ms. Johnson. Thank you.
Mr. Shapiro, do you have any idea why EPA has allowed many
power plants to discharge toxic metals and pollutants into the
Nation's water, with no permit limits whatsoever?
Mr. Shapiro. The releases from these facilities are subject
to the NPDES permitting program, the National Pollutant
Discharge Elimination Systems, which is run by EPA but
administered, in most cases, by authorized State agencies.
Those limits have to reflect required national effluent limits,
as well as any controls that are necessary to meet local water
quality standards in the receiving waters. Our national
effluent guideline limits for this industry segment are quite
old. They only require limits on total suspended solids, as
well as oil and grease; they do not address, currently, any
individual toxic metal components or other individual
components.
In some cases, States have added requirements to monitor
certain toxic components, such as selenium and mercury, but,
again, in those cases they may not have established numeric
limits. That would be at the discretion of the permit writer,
and it is very difficult to establish such limits given the
information currently available.
Ms. Johnson. Has it occurred to you that you might have
some responsibility to initiate some measure to protect the
public's health?
Mr. Shapiro. Yes. We are actually in the process of
reviewing those existing effluent guidelines and will be making
a determination later this year as to whether to revise them in
order, for example, to address limitations on specific toxic
constituents.
Ms. Johnson. Now, I know the last guidelines that I am
aware of were developed in 1982. Has anything been done since
then?
Mr. Shapiro. We initiated work, I think two years ago now,
to review those guidelines and to begin to gather data from the
industry and from our own onsite sampling in order to make sure
that we can characterize properly the effluent from these
facilities and begin to evaluate the need for new regulations
and understand the technologies that would be necessary if we
should establish new limits.
Ms. Johnson. Have you decided it is important to do
something about this or----
Mr. Shapiro. We haven't reached any final decisions yet. I
think there is significant data that we have accumulated that
make this decision a very high priority for us.
Ms. Johnson. Who is we?
Mr. Shapiro. The Environmental Protection Agency. The
program is administered by the Office of Water.
Ms. Johnson. Do you feel you have any responsibility to
initiate some leadership in making sure that something gets
attention and perhaps get some procedures in place to correct
it?
Mr. Shapiro. Well, again, the information that we have to
date I think makes addressing this decision a high priority for
us, and we intend to do so as soon as we can complete our work
and put together a series of recommendations that would
ultimately have to be approved by the Administrator.
Ms. Johnson. Could you submit to this Committee your plans
and procedures that you are putting together in the next 30
days?
Mr. Shapiro. I would be happy to do so.
Ms. Johnson. Thank you.
Mr. Boozman.
Mr. Boozman. Thank you, Madam Chair.
Ms. Wilson, you noted that, in February 2009, EPA requested
the States to express their preference concerning three
possible options, and I believe that you chose the non-
hazardous waste option. Can you tell us the advantages of that
approach versus the other options that EPA laid out?
Ms. Wilson. Yes. We are continuing to examine the issue, so
it is a process that is iterative. But the advantages of
regulating under Subtitle D, we believe, are that we think that
that is a very known process. We already have it in place,
there aren't legal authority questions associated with it, and
we think that, given the nature of this material, it will be
effective.
There are also advantages and disadvantages of regulating
it as a hazardous waste. One of the concerns we have with
regulating as a hazardous waste under Subtitle C would be that
that is a very stringent regulatory process, and we are
concerned that it would have the unintended consequence of
discouraging beneficial reuse. And with the increase in the
volume of this material that I think we are all going to face,
it is very important to ensure that we are doing all we can to
encourage beneficial reuse.
So you can see the merits of all three of the different
approaches. I think that, at this point--and we may learn more
which could change our opinion, but, at this point, regulating
under Subtitle D would seem to us to be, one, protective, and
that is the most important aspect, of course, of public health;
but it also is a known process and we are confident that it
will work.
Mr. Boozman. So if you are in a building and the concrete
there has hazardous waste in it, you are working in the
building and the office wall, like I say, has hazardous waste,
it really helps the integrity of--the concrete is inert, it is
just something that most people might not want.
Ms. Wilson. Well, as Mr. Breen said, there are many safe,
beneficial reuses, concrete being one. I believe that if EPA
were to regulate the material as the hazardous waste, there
would be an exemption for beneficial reuse and there would
still be an intent to encourage reuse. So it is not so much
that situation as just generally----
Mr. Boozman. But there would be some stigma associated with
that.
Ms. Wilson. Yes, I agree.
Mr. Boozman. That was the point I was trying to make.
Ms. Wilson. Yes, I agree.
Mr. Boozman. Mr. Breen, you have heard from Ms. Wilson that
her State feels like that is the route to go. In your
questioning and things, the Environmental Council of States
have expressed a similar view. Have any of the States chosen
one of the other two alternatives?
Mr. Breen. I am not aware of any States choosing another
alternative at this time. But, at the same time, I haven't done
an exhaustive study. There is an important review and survey of
that work prepared by the Association of State and Territorial
Solid Waste Management Officials, and we would be happy to
provide that to you for your use.
Mr. Boozman. Good. Thank you. I guess, really, we are
talking about a couple different things: we are talking about
storage problems and then we are talking about whether or not
it is hazardous waste or not. I mean, those are two different
issues. Are most of the storage problems--and I agree with Ms.
Johnson in the sense that we need to fix this where it is
safely stored. We also need to regulate it such so, when it
eventually winds up in the water system, that it is safe water
going back in there. Okay?
Are most of the problems that we are experiencing, do they
have to do with the older facilities versus the new facilities
that are coming online? Is the standard higher with the new
facilities?
Mr. Breen. We do have some information on that. We have a
study of facilities that were new between 1994 and 2000, so a
10-to 11-year period, and all of the surface impoundments built
during that time have liners, which is an important safeguard;
and nearly all, but not quite all, of the landfills have
liners, 97 percent have liners. In terms of groundwater
monitoring, 81 percent of the surface impoundments have
groundwater monitoring, so many, but, again, not all have
groundwater monitoring. And of the landfills, 98 percent. So
many, many, but not quite all have groundwater monitoring.
So there is a good record, but not a perfect record in that
regard.
Mr. Boozman. And the facility that we had problems with, it
did not have a liner, is that correct?
Mr. Breen. That is my understanding. And we can get you
more information on that facility if you would like.
Mr. Boozman. Very good.
Thank you, Madam Chair.
Ms. Johnson. Thank you very much.
The Chair now recognizes Ms. Edwards.
Ms. Edwards. Thank you, Madam Chairwoman, and thank you to
all of our witnesses today.
I have a question for you, Mr. Breen. In layperson's terms,
what exactly is the definition of a hazardous waste?
Mr. Breen. Thank you. I will do my very best. One judge
calls this a mind-numbing problem.
A hazardous waste is a defined term under the Resource
Conservation and Recovery Act, and it can be defined as
hazardous waste in either of two ways: either EPA has listed it
as a waste, and there are several hundred listed waste streams;
or it can be a hazardous waste if it exhibits any one of four
toxicity characteristics: TCLP, toxicity, corrosivity,
ignitability, and reactivity. Thank you. ICRT.
Ms. Edwards. All right. So let me ask you what is it about
coal ash, the waste, that makes it not a hazardous waste?
Mr. Breen. Thank you. So EPA has not listed it as
hazardous.
Ms. Edwards. Okay, I got that part.
Mr. Breen. So on the first one, and, in fact, under a
statute often called the Bevell amendment, named after
Congressman Bevell, there are special steps we would have to go
through in that regard. But, in addition, coal ash, as a whole,
and coal combustion residuals, rarely test positive for those
four characteristics. A small percentage of the time they do,
but overwhelmingly they don't test positive for the four
characteristics.
At the same time, they contain, within them, metals. For
example, arsenic and mercury, and those metals are identified
as hazardous substances under CERCLA, under the Superfund
statutes. So there are hazardous substances in coal combustion
residuals, even though, as a whole, they have not been listed
as hazardous waste and tend not to test out under those four
characteristics.
Ms. Edwards. So let me ask you this. According to the EPA's
1999 report to Congress on waste from combustion of fossil
fuels, ``Low income communities and people of color shoulder a
disproportionate share of the health risks from these wastes.
The poverty rate of people living within one mile of power
plant waste facilities is twice as high as the national average
and the percentage of non-white populations within one mile is
30 percent higher than the national average.''
And it goes on to say ``Similar high poverty rates are
found in 118 of the 120 coal producing counties where power
plant wastes increasingly are being disposed of in unlined,
unregulated mines, often directly into groundwater.''
So for those 118 low income communities and communities of
color, what is the hazard to them?
Mr. Breen. Thank you. So there are probably several
hazards. One is a groundwater release in an unlined facility,
especially, a release in groundwater and metals----
Ms. Edwards. And a substantial number of them are unlined?
Mr. Breen. Yes, especially those built longer ago than
those built recently. So groundwater contamination is certainly
of concern; surface water contamination is of concern; and
then, of course, the stability of the impoundments themselves,
the kind of catastrophic single disaster event like in the
Kingston facility, would be of concern too. Not so much a long-
term exposure, but just the sheer volume of over a billion
gallons of water in the Kingston example.
Ms. Edwards. And have you updated the 1999 report?
Mr. Breen. Not to my knowledge, but we can check.
Ms. Edwards. So you don't have recent data on the
phenomenon of the impact on low income communities and people
of color of 118 of the 120 coal producing counties?
Mr. Breen. I haven't seen an update.
Ms. Edwards. Thank you.
Lastly, Secretary Wilson, thank you for being here. I think
we are doing tremendous things in Maryland. Would Maryland have
a problem complying with EPA regulations should EPA decide to
regulate coal ash as a hazardous waste?
Ms. Wilson. No. If that is a determination, Maryland will
abide by the Federal requirements, so we would not have a
problem complying. It is really more a matter of a policy
question and what the most effective approach is.
Ms. Edwards. And have you had an opportunity to analyze any
of the data that you have collected from groundwater
monitoring; looking at, particularly, the impact unlined
facilities from neighboring states where contaminated water has
seeped over into Maryland's waterways?
Ms. Wilson. I am not aware of any impact from out-of-State
facilities to Maryland, but we are certainly aware of an impact
from our in-State facilities to our groundwater and are very
concerned about those public health impacts.
Ms. Edwards. Thank you, Madam Chair.
Ms. Johnson. Thank you very much.
Mr. Hall, who knows firsthand what neglect will do for
cleanup.
Mr. Hall. Thank you, Madam Chair, Ranking Member Boozman,
and thank you to our witnesses.
Acting Assistant Administrator Breen, I wanted to ask you
if you could elaborate more on your guidelines for mine
filling, please.
Mr. Breen. At the present time, I don't know that we have
guidelines at the Federal level on mine filling, and I will
turn to Secretary Wilson to see if she can elaborate.
Ms. Wilson. Thank you for the question.
We have requirements for two types of mines, deep coal
mines and then surface mines. With regard to the latter,
surface mines, our new set of requirements are basically akin
to State industrial landfill type regulations. With regard to
the deeper coal mines, the requirements are primarily twofold:
one is to make sure that the volume of coal combustion waste
product and the type of that product is appropriate so that you
get the right balance to combat acid mine drainage and to make
sure that the characteristics of the leachater are stable and
they are positive and not a negative impact; and then the
second important part of that set of requirements is
groundwater monitoring.
Mr. Hall. You said in your testimony you were concerned not
only about liquid wastes, but also by-products. What would
those be?
Ms. Wilson. Well, I may not have been very clear, but, in
Maryland, we don't have these impoundments that contain liquid
waste; we are mostly dealing with mine reclamation and just
disposal. So while, rightfully so, there has been a tremendous
amount of discussion about liquid waste and slurry lagoons, we
don't face that situation yet; we are concerned about ensuring
that public health is protected in the mine reclamation area
and then in the regular disposal of non-slurried coal
combustion waste.
Mr. Hall. Thank you.
Acting Assistant Administrator Breen, would you be
agreeable to, or do you think the Agency would be agreeable to,
labeling of or notification for concrete or lightweight
aggregate or other materials that are made with CCW as a
component?
Mr. Breen. Thank you. Congressman, may I first ask my
colleague to answer part of your question that you asked a
moment ago about mine filling? The drinking water program does
have a role in that.
Mr. Shapiro. Thank you. Just to add to Barry's comment,
under the underground injection control program, which is a
program administered by EPA and authorized States under the
Safe Drinking Water Act, certain types of mine backfilling
operations would be considered injection wells and would be
regulated under one of the categories of our underground
injection control program, and there are minimum national
requirements which some States build upon in regulating these
kinds of facilities. Again, not necessarily every backfill
operation, but those that constitute wells, of which, in 1999,
we documented there were about 5,000 such backfill wells in the
Country are subject to our underground injection control
program.
Mr. Hall. Okay. And regarding labeling or notification of
products that have ``beneficial uses'' and that have CCW as a
component, like concrete or cinder blocks, would you speak to
these products?
Mr. Breen. And your question, Congressman, is whether we
would be open to considering providing some guidelines for
labeling in that regard?
Mr. Hall. Right.
Mr. Breen. And we would be happy to.
Mr. Hall. And regarding the metals of concern that you
spoke about, cadmium, arsenic, mercury, et cetera, which are
generally considered to be poisons, especially when they exceed
the standards by 30 times or so, are they the same in coal as
they are in clean coal?
Mr. Breen. I am going to have to get you that answer for
the record, I am not familiar.
Mr. Hall. Well, I have just been watching TV a lot, and I
guess I have heard that term enough times that I wanted to ask
that question on the record.
Mr. Breen. Thank you.
Mr. Hall. Is clean coal any different than regular coal in
terms of the content of, or emissions of, or residue of
arsenic, mercury, cadmium, and other poisonous metals?
Mr. Breen. I will get you that answer for the record. I am
not personally familiar.
Mr. Hall. Thank you very much, Madam Chair. I yield back.
Ms. Johnson. Thank you very much.
Mr. Teague.
Mr. Teague. Thank you, Madam Chair and Ranking Member. I
would like to also thank all of the members of the panel that
are here.
Secretary Wilson, could you describe to me Maryland's
position towards the regulation of the reuse of the coal
combustion waste material?
Ms. Wilson. I will not be able to do that in too much
detail because we are just beginning our efforts to better
define that, but I can tell you what our concerns are. We want
to make sure that we are doing all we can to encourage safe
reuse. Fiberboard, cement seem to very safe, so we want to look
at those, but we are generally not as concerned with those
reuses as with some others, such as using material in highway
embankments. There are a range of suggested uses and we don't
have standards in place currently that are aimed at both
encouraging the reuse, but making sure that it is safe. So we
are really just about to embark on that effort, so that is
about all I can tell you.
Mr. Teague. Also, is there going to be some consideration
of maybe using certain quantities of it as a soil additive or
in agriculture as a fertilizer or anything along those lines?
Ms. Wilson. We do have a process in place to review, from a
regulatory perspective, that kind of use. Right now we don't
have a tremendous demand in Maryland for that, but we would
look at that.
I should also add that it is a very large task for a State
like Maryland to embark on this kind of effort. So to the
extent we can get assistance from the Environmental Protection
Agency and the Federal Government, it is much welcomed.
Mr. Teague. But you do think that there should be
safeguards put in place to regulate the reuse of that material?
Ms. Wilson. Yes, sir.
Mr. Teague. Mr. Breen, on the Kingston spill, did the spill
occur from a lack of regulation or monitoring? Are you familiar
with that?
Mr. Breen. I am familiar with the spill. It is hard to
answer. It was regulated by the State of Tennessee and
periodically inspected by regulators. But, at the same time,
there is a question whether it would have made a difference had
there been Federal regulations, and it is always hard to know
what would have happened, because you just don't have that kind
of certainty. But that is one of the things we are considering
and moving forward in the rulemaking, to what extent can we
prevent this kind of catastrophe from happening again, and that
is the kind of thing we would like to do.
Mr. Teague. One of the things I am concerned with is that
we are not setting up a new tier of regulations here because
somebody wasn't monitoring or regulating; somebody wasn't doing
the job that they were supposed to be doing. And rather than
make some hard decisions at that spot, are we setting up a
whole other tier of regulations to get around that?
Mr. Breen. Congressman, your question would be are we
making sure that we are not duplicating work that is already
underway?
Mr. Teague. Or be sure that we are just not letting
somebody not do their job, and instead of telling them to start
doing their job, that we are making up another layer of
regulations.
Mr. Breen. I see. Thank you. Of course, in almost anything
we do in this area, it would be a partnership between States
and the EPA, and it would be important to have a close working
relationship in which we don't duplicate each other's work and
rely on each other.
Mr. Teague. Okay, so as you set the regulations, the State
and local agencies will be involved in setting those
regulations?
Mr. Breen. Yes, very much so.
Mr. Teague. Okay. Thank you.
Ms. Johnson. Thank you very much.
Ms. Titus.
Ms. Titus. Thank you, Madam Chairman.
I would address this to the members of the EPA. You have
made it really clear that you are not regulating these coal
combustion waste storage facilities, and you also mentioned
several times that this is what the States are doing. You just
now said you will have a close working relationship with the
States in the future, just as you have now. Well, there is
considerable evidence that there is wide variation between the
States or among all the States when it comes to this
regulation, and even within States, among the different
facilities, some are lined, some aren't.
Now, this fragmentation seems to me not only to hurt the
people who live in the States that have lax regulation, but it
can hurt people in next door States who may have strict
regulation, because we know water doesn't recognize State
boundary lines. In fact, that is happening in Nevada with the
proposed coal-fired pine in White Pine County; people across
the State line are getting involved in that debate.
I would ask you what is Nevada's policy for regulation? How
many of these facilities do we have in the State and which ones
are lined and which ones aren't?
Mr. Breen. Thank you. I don't have with me information
specific to Nevada. It is the case, though, that we are
committed that, by December of 2009, we will propose a Federal
regulatory package on this. So the fact that there are no
Federal standards under the Resource Conservation and Recovery
Act at this time is not a permanent situation.
Ms. Titus. Well, I hope so, but I keep hearing that you
said this nine years ago, eight years ago, ten years ago, six
years ago. Now it is December. I hope it really will be
December. But what worries me is that you say you don't have
that information about Nevada. I get the feeling that not only
have you not been regulating it, but you don't have much
oversight on what is happening in the different States. So
there is not much incentive for the States to get busy and do
something on their own to make up for the fact that you haven't
been doing it at the Federal level.
And I would just carry that one step further and ask if you
know what the States are doing about regulating beneficial use.
Do you have any sense of what the States are doing across the
country in that area and do you have any plans on starting to
regulate beneficial use at the Federal level?
Mr. Breen. We have a study on State programs in this area
that I would be happy to provide you; I just don't have all the
State by State information in my head. But I would be happy to
provide you the copy of the study that we have.
In terms of regulating beneficial use, it is an important
part of this issue, which is that we would want good, safe
practices to continue. So, for example, in some concrete and
cement applications, coal combustion residuals are actually
superior to some of the virgin products that would otherwise
have to be mined out of the environment. This is an important
part of what we are doing.
Ms. Titus. So you do have plans, then, to put in place some
regulation or something?
Mr. Breen. What we would want to do is recognize the
beneficial uses in the plan that we do put in place so that we
don't do more harm than good in that regard.
Ms. Titus. Well, I heard the Secretary, Ms. Wilson,
mentioning that Maryland was moving in that direction to come
up with some plans or guidelines or something. Are you going to
do that at the national level or are you going to leave that to
the States?
Mr. Breen. I can't say yet what the regulatory package will
look like at the end of the year; we still have a lot of work
to do between now and December.
Ms. Titus. Thank you.
Ms. Johnson. Thank you very much.
Mrs. Napolitano.
Mrs. Napolitano. Thank you, Madam Chair, and thank you for
convening this hearing on a very important issue as it relates
to hazardous waste. As the Chair of the Water and Power
Committee under Natural Resources, this is of great interest to
me, and the fact that EPA has a lot of information or does not
have information on some of these issues is troubling.
I would like to ask Mr. Breen if there is enough
information that you have on the storage problem? How many of
these facilities are actively being used throughout the
Country? And to that you say that most of them are lined. Are
the new ones being required to be lined? Those which are lined
with clay, are they being checked for cracks to ensure that
there is no seepage into the aquifers? How do you know this? Do
you have sufficient staff funding to be able to carry out that
which will protect the environment?
And dovetailing with Ms. Edwards' questions about siting in
low income and poverty areas, that is quite an issue for a lot
of us and it concerns us. Do you look at that as part of the
siting permitting?
I know that is a lot of questions, but they are all based
on one.
Mr. Breen. Thank you so much. One of your questions was how
do we know and what do we know about the size of this group of
facilities. Last month, on March 9th, we sent out information
requests using the authority of the Superfund statute, and
information request is actually a term of art. These were
enforceable demands for information, and a failure to answer
would be an enforceable offense. We sent those to 61
corporations representing 162 facilities, where we added up
just over 300 individual units. So a corporation could have
more than one facility and a facility could conceivably have
more than one unit.
One of the questions we asked of the corporations was are
there any other facilities that are not currently on our list,
because we used a survey from the Energy Information
Administration from 2005 to develop our information requests.
Mrs. Napolitano. I am assuming they don't have to come to
you for permitting.
Mr. Breen. I am sorry?
Mrs. Napolitano. They do not have to come to you for
permitting to establish----
Mr. Breen. That is correct. There is no Federal requirement
with the EPA for a permit at this time.
Mrs. Napolitano. Should there be?
Mr. Breen. I am sorry?
Mrs. Napolitano. Should there be?
Mr. Breen. Well, that is an important question that we have
to resolve in the rulemaking. Under Subtitle C, there would
typically be a requirement for a federally authorized permit,
and under Subtitle D there would not necessarily be that
requirement.
Just to finish up, though, on your question, when we asked
the corporations are there any facilities that are not on our
current list, we identified 43 additional facilities. So
earlier this week I sent a letter to the managers at each of
those 43 facilities to answer the same questions that their
colleagues had answered last month.
So we now are aware of about 400 units at just over 200
different facilities, and they have all been sent the same
letter now that asks questions about the stability of their
dams, of their impoundments, with a goal towards being sure
that another Kingston-like spill is prevented. We will send
teams out, starting in May, to visit facilities that have not
recently been visited and we will make sure that we, by the end
of this year, have looked at every one of the units.
Mrs. Napolitano. Can you tell me how many personnel you
have to be able to do this job? And you are starting next year
or this year in May?
Mr. Breen. Right. I do not have a specific number of people
working on this project, although I can tell you that, when I
sit in meetings, we have a lot, and it is a current high
priority for us.
Mrs. Napolitano. A lot being roughly how many?
Mr. Breen. Oh.
Mrs. Napolitano. Because if we are going to have you
inspect--well, you say the ones that have not been inspected
are the ones that are due for inspection, and there are 400 of
them, and those are the ones that are reported. When will we
have a good idea as to their status and whether they are not or
are in violation of EPA rules?
Mr. Breen. In fact, I can help with what we know so far
about that, and I should share with you that most of the
assessments on a facility basis, where people go out and visit
a facility, will be done by engineers that we have hired
through a contract, rather than civil servants.
Mrs. Napolitano. Okay, contract.
Mr. Breen. So it turns out, at least within the EPA, we
don't have the number of people with this kind of talent, but,
at the same time, we have gotten them through a contractor.
What we can say so far is that, from the approximately 160
facilities that have answered our letter that we sent last
month, we have identified 44 that are in locations that could
present a hazard if there were a breach. These are called high
hazard. Not to suggest that the dams themselves are in danger
of breaking, but that their location presents a hazard, that
is, they are kind of uphill.
Mrs. Napolitano. My time has expired, but I would like to
ask that you render to this Committee some of that information
that you have garnered, State by State, the numbers that are
lined, the number unlined, and what time-frame you feel is
going to be necessary to be able to review those.
Thank you, Madam Chair.
Ms. Johnson. Thank you very much.
Before I call on Mr. Kagen, let me just ask you. You talked
about the facility structures, but not water quality or water
content. In terms of that survey, are you concerned about the
contents and quality of the water or just the facility
structures?
Mr. Breen. Madam Chairman, there were a number of
questions, and what I should do, I think, is give you, after
the hearing, the list of questions so you can see for yourself
what we asked of each of the facilities.
Ms. Johnson. Mr. Boozman.
Mr. Boozman. Thank you.
Ms. Wilson, you testified that if you were forced to or if
it came down that this would be regulated as hazardous waste,
can you give us an idea of what that would do to utility rates?
We have concern about various individuals. What is that going
to do to the single moms and the working poor that are trying
to pay their electricity bill every month?
Ms. Wilson. I really can't tell you what impact that would
have on utility rates other than----
Mr. Boozman. Would it have an impact?
Ms. Wilson. I don't know, other than to reiterate that----
Mr. Boozman. What is your gut feeling?
Ms. Wilson. I really could not tell you. But I would like
to say that I would hope that if the material were regulated as
a hazardous waste, there would be a clear defined process that
would exempt beneficial reuse so that we could really encourage
the reuse of the material.
Mr. Boozman. Thank you, Madam Chair.
Ms. Johnson. Thank you very much. We have a vote on,
although, Mr. Kagen, you might be able to get your questions
in.
Mr. Kagen. Thank you, Madam Chairwoman, and thank you for
appearing here today. I gather that you are the new kids on the
block, that you are just getting in the saddle, so I won't give
you a 100 days grade yet, because this is not CNN, this is the
United States Congress, and we are trying to figure out what is
the best thing to do not just for our waterways, but also for
our human health.
And when Ranking Member Boozman brings up the question
about the cost to the consumer for the excessive use of coal,
the utility costs may go up, but we also have to put into
balance, the human cost. I don't know what the safe level is of
mercury, but it has got to be almost zero. So there are other
costs that come along.
The EPA did do a study with regard to the metals and other
toxic materials leaching out of the coal waste, and I noticed
that the report mentioned boron and cadmium and selenium,
barium, beryllium, boron, arsenic, but it didn't mention
mercury. And if you don't have that answer today, I would like
you to provide answers to this Subcommittee with regard to the
amount of mercury that the coal waste has contributed to our
waterways.
In northeast Wisconsin, our fish have a high concentration
of mercury, and we believe that about 40 percent of the mercury
in the fish in the Great Lakes in northern Wisconsin and
Minnesota may have come from dirty coal across the globe in
China. So this is not your area of purview, but I would
appreciate it if you could chase around the EPA and find those
numbers. If those numbers don't exist, I would like you to
propose a study to take a look at that.
I would like to ask the three of you from the EPA if you
couldn't please provide us with the three most important things
you think you are intending to do in the next six months and
then, in a follow-up letter three months from now, please
provide this Subcommittee with answers as to how you are
progressing.
Let's start with Mr. Shapiro.
Mr. Shapiro. Sorry. When you say with respect to this
specific problem, the three most significant things?
Mr. Kagen. That is right.
Mr. Shapiro. I can give you two right off the bat, one I
mentioned earlier. We are thorough reexamining our effluent
guideline and will make a determination as to whether we need
to develop new guidelines that reflect some of the issues that
you discussed with respect to heavy metals such as mercury and
other materials in the effluent. So that is number one.
Number two isn't specific to this kind of facility
generally, but has important significance, and that is we are
reexamining our water quality criterion for selenium, which is
one of the contaminants of concern from these kinds of
facilities. We had proposed a revised standard in 2004, got a
lot of comments on that. We went back to the drawing board, so
to speak, and we expect to propose a revised standard later
this year.
Number three, we are developing guidance for permit writers
to assist them in making sure that, with the existing
authorities we have in the NPDES program, they are asking the
right questions and looking at the right issues at these
facilities. And, again, that is something that we will complete
within the next six months.
Mr. Kagen. Thank you.
Mr. Breen. If I might offer four, instead of three, to
answer your question.
Mr. Kagen. In the interest of time, do so in writing, but
give me your number one.
Mr. Breen. Oh, the number one?
Mr. Kagen. Yes.
Mr. Breen. It is always hard to pick a favorite child. I
would just list for you the intent to do the rulemaking by
December of 2009 is certainly one of them.
Mr. Kagen. Very good.
Ms. McCabe?
Ms. McCabe. Of course, from the Enforcement Office's
perspective, it is our responsibility to review the compliance
of the coal-fired power plants with surface impoundments with
existing laws. As we have heard testimony, of course, we don't
have much existing law under RCRA. We also have Clean Water
Act, some discharges from end of pipes, permits and regulations
that apply to the facilities, and we are in the process of
investigating the situations based on all the information that
the Agency has collected that we think might present
significant threats to public health or the environment for
which Federal enforcement action could be appropriate.
Mr. Kagen. Thank you. I look forward to your report in
three months to the Subcommittee.
I will just close with a comment and a question, as to
whether or not there is such a thing as ``clean coal.'' It is
dirty when you mine it, it is dirty when it is hauled to the
place of combustion, and it produces not exactly the cleanest
of air and effluent materials. So we have to ask the question
is there anything really clean about coal, especially when you
think of the energy that we are getting out of it, where 50
percent of the energy that is in the coal is taken up along its
transportation route to the facility, where it is going to
generate the electricity that we so desperately need.
So I yield back my time. Thank you very much for being
here.
Ms. Johnson. Thank you very much.
The Chair of our Full Committee, Mr. Oberstar.
Mr. Oberstar. Thank you, Madam Chair. Thank you and Mr.
Boozman for conducting this hearing, and to EPA for being here
to respond.
For me, the issue is not whether the material is toxic or
hazardous, but that it is behind a retaining structure, a levee
or a dam; and the issue of hazard, I think, can be very simply
answered. A 60-foot high wall of water is hazardous to anything
in its path. Whether it is toxic or not is of secondary
significance. So the structural integrity of the retaining
facilities is a real issue here.
We had, along the north shore of my district, meaning the
north shore of Lake Superior, an iron ore mining processing
plant that has a power facility and stores fly ash. That fly
ash facility retaining facility failed and a wall of fly ash 20
feet high rolled down the hillside, spilled over U.S. Highway
61, and some of it spilled into Lake Superior. Traffic was
stopped for a couple of days and there was no other route; the
only way is to get in a canoe and paddle along Lake Superior.
I am familiar with fly ash. When I was in college, I worked
at a ready-mix concrete facility which made, as part of its
work, concrete blocks with fly ash. They were one of the early
ones to experiment with fly ash. I appreciated the fly ash
blocks because they weighed half the amount of a full concrete
block, 21 pounds rather than 42 pounds; 48 pounds for a corner
block. I still remember.
Was this facility lined or unlined?
Mr. Breen. The facility is the Kingston facility?
Mr. Oberstar. Yes.
Mr. Breen. I don't have that answer readily in front of me,
and unless one of my colleagues does, we will get it for you
for the record.
Mr. Oberstar. Was this a pancake type structure, that is,
layer added upon layer upon layer, without broadening the base?
Mr. Breen. Let me get you that for the record.
Mr. Oberstar. It is my understanding that is what it was.
The average height of these retaining structures are in the
range of 15 to 20 feet. This one was 60 feet. Who has the
primary responsibility for evaluating the integrity of the
structure itself?
Mr. Breen. One of the things we want to do is to follow up,
so we have written the letters to every electric utility, coal-
fired facility in the Country, and we are gathering that
information right now. We have answers to all but two of those
that we sent last month. Then we sent another group out earlier
this week.
Mr. Oberstar. Of course, the company itself, in this case,
TVA, has the primary responsibility. Is there a State dam
inspection facility?
Mr. Breen. The answer depends on the State, but in
Tennessee's case there is an active and excellent group of
inspectors.
Mr. Oberstar. And EPA's responsibility, does EPA conduct on
its own or contract out to inspection services to do inspection
of facilities that contain hazardous material?
Mr. Breen. With respect to the dam integrity, EPA does not
have regulations to enforce----
Mr. Oberstar. I understand that.
Mr. Breen. And we don't have the talent and the numbers
that we would need----
Mr. Oberstar. Could you contract out to the Corps of
Engineers, engage them to do that work on EPA's behalf?
Mr. Breen. We have contracted out to a private contractor,
after consulting with several other Federal agencies, including
the Army Corps of Engineers, and we went to a private
contractor who could mobilize very quickly.
Mr. Oberstar. And the Corps did not, could not, or was not
interested, or their price was too high, or what?
Mr. Breen. I don't think it was a matter of price, but this
would require--we wanted to be able to see every facility that
needed to be seen in person by the end of this year.
Mr. Oberstar. Well, this Committee, many years ago and then
more recently, enacted dam safety legislation requiring
inspection of dams of all size, configuration, height, and use;
and then we, during the previous majority, reauthorized that
legislation, and the Corps of Engineers has the principle
responsibility for doing that work. I think it would be
beneficial to get the Corps back into this picture, however
good your private contractor may well be. But I think it is
good to have their experience in this matter.
Mr. Breen. Mr. Chairman, in that regard, when we get the
results from the private contractor, we intend to share them
with other Federal agencies for advice and counsel about what
to make of those reports.
Mr. Oberstar. Good. Well, there is not only the risk of
failure, but there is the risk of seepage. We have those
problems all along the Mississippi River from just south of St.
Paul all the way to New Orleans; levees that are in place, that
are old, that have been weakened by burrowing owls, by rodents,
by vegetation, and they are leaking and they were not built
deep enough, they were built to withstand the 1 percent, that
is, once in 100 year flood occasion, and now we are having
events of far greater ferocity, and the Corps has to go back
and reevaluate all these structures. Similarly with these fly
ash retention facilities.
We will look forward to your report. Thank you very much.
Ms. Johnson. Thank you very much.
We will conclude the first panel. Thank you for coming.
Look forward to hearing from you.
We have a vote on, so the second panel will be up as soon
as we can get back.
[Recess.]
Ms. Johnson. We will come to order.
Our second panel of witnesses consists of Mr. Eric
Schaeffer, the Executive Director of the Environmental
Integrity Project. Mr. Schaeffer is also testifying on behalf
of Earthjustice. As many of you know, Mr. Schaeffer is the
former head of EPA's Office of Civil Enforcement. We look
forward to your insights on this issue.
He will be followed by Mr. John McManus. Mr. McManus is the
Vice President for Environmental Services with American
Electric Power. He is also testifying on behalf of Edison
Electric Institute and the Utility Solid Waste Activities
Group.
Our third witness is Mr. David Goss, who is testifying on
behalf of the American Coal Ash Association.
And the final member of the second panel is Dr. Conrad Volz
from the University of Pittsburgh's Department of Environmental
and Occupational Health. He is also Director of Pitt's Center
for Healthy Environments and Communities.
Your full statements will be placed in the record, and we
ask you to limit your testimony to about five minutes as a
courtesy to others, and you can be sure that we will read them.
Again, we will proceed in the order in which the witnesses
are listed, so, Mr. Schaeffer, you may proceed.
TESTIMONY OF ERIC SCHAEFFER, EXECUTIVE DIRECTOR, ENVIRONMENTAL
INTEGRITY PROJECT, WASHINGTON, D.C.; JOHN M. MCMANUS, VICE
PRESIDENT OF ENVIRONMENTAL SERVICES, AMERICAN ELECTRIC POWER,
COLUMBUS, OHIO, TESTIFYING ON BEHALF OF EDISON ELECTRIC
INSTITUTE AND UTILITY SOLID WASTE ACTIVITIES GROUP; DAVID GOSS,
FORMER EXECUTIVE DIRECTOR, AMERICAN COAL ASH ASSOCIATION,
AURORA, COLORADO; AND DR. CONRAD VOLZ, ASSISTANT PROFESSOR OF
ENVIRONMENTAL AND OCCUPATIONAL HEALTH, DIRECTOR, CENTER FOR
HEALTHY ENVIRONMENTS AND COMMUNITIES, UNIVERSITY OF PITTSBURGH,
PITTSBURGH, PENNSYLVANIA
Mr. Schaeffer. Thank you, Madam Chairman and Congressman
Boozman, for the introduction and a chance to testify today.
I want to follow up on a couple of points that were made in
the earlier discussion. There was some back and forth about
whether coal ash is hazardous, and just make two points in
response to that. One is the National Research Council, in
2006, in their study of the placement of coal ash in abandoned
mines, said very clearly that burning coal concentrates the
toxic constituents that are in coal, like arsenic and selenium,
many times over. Those toxic elements will leak out of coal ash
if that ash is saturated, and especially when it is stored in
wet environments. And that is from the National Research
Council.
The U.S. EPA has lots of data which shows that the
leachate, or the runoff from the coal ash, is quite toxic. It
is full of metals that are known to be hazardous to human
health and the environment.
So whatever EPA decides to call coal ash at the end of the
day, it sure acts like a hazardous waste, and I think we need
to keep that reality in front of us.
I wanted to talk briefly about how these dangerous
pollutants can get into our waterways, thinking now about
rivers and wetlands and creeks and bays. There are three ways
that we can have that pollution hit our freshwater and
saltwater systems. One, of course, is that a dike or dam can
break or give way. That is what happened in Kingston and the
Committee has been very alert to that problem and asking great
questions about it, and I know you will continue to do that.
The second problem, more insidious and, I think, more
dangerous in the long-term, is, as has been discussed, the
toxic constituents--arsenic, cadmium, selenium, other metals--
will leak out of the bottom of a landfill that is not properly
lined or maintained. So just to make the point that it won't do
you any good to keep building the walls up around these
landfills if the pollutants that we care about keep leaking out
through the bottom; and that is a problem. Once groundwater is
contaminated, it can poison drinking wells, but it can also
interact with wetlands and with creeks and rivers, and the
contaminants can get into our water systems that way.
A third problem, and one that may have received less
attention, is the toxic pollutants can be discharged directly
as the wastewater from ash pits and from scrubber sludge ponds
is drawn off and discharged through pipes or ditches directly
into wetlands or rivers. And I have a couple of charts at the
back of the testimony that I would just like to draw your
attention to.
We have, as the first example, selenium, which is highly
toxic to fish and aquatic life. EPA has recommended that the
level of selenium in freshwater not exceed 5 micrograms per
liter; the standard or the criteria for saltwater is 71
micrograms per liter. And, again, levels above that are thought
to, in effect, poison fish and aquatic features, and eventually
get into bird life and potentially threaten humans. So the
standard is very tough.
As you can see from the chart, we have a number of coal
plants that routinely discharge selenium, a very deadly toxic
pollutant, at concentrations far above what EPA deems to be
safe for fish and aquatic life.
I just want to recognize that I am talking about what comes
out of the pipe. That is what is discharged. Once it hits the
river or freshwater system, it may be diluted. So, you are
going to get some dilution, but these levels are so high that
it is hard to believe that they are not going to have an impact
and, in some cases, a dramatic impact. I mean, I just look to
the Tampa Bay example, Tampa Electric's Big Bend Plant. The
discharges are at nearly 3,000 micrograms. You compare that to
a saltwater standard of 71, and EPA needs to be asking what
happens when that much of that kind of toxic metal hits the
bay.
Another example, arsenic. As I think everybody knows, we
have a drinking water standard of 10 micrograms per liter for
arsenic. EPA has recommended a much lower standard for rivers
and streams that is designed to keep fish from being poisoned
and, therefore, being made unsafe for humans to eat. That
standard is actually less than a microgram per liter.
Again, looking at the discharges from these plants, they
are far above that level. Even recognizing there will be some
mixing and dilution, that is an awful lot of arsenic from these
plants, sometimes going into wetlands or very small creeks, a
big slug of toxic metals.
Looking across the Country, we found that almost none of
these plants had limits. States do have authority to set limits
on toxic metal discharges; almost none of them have done so.
Certainly, that has not been the case at the TVA plants. Of the
plants in the charts, we found only two that had actual limits,
and those limits had been violated frequently in the last
several years. So this is an emerging problem.
I think it is worth emphasizing because we are pushing the
power industry hard to install scrubbers and to clean up the
waste that comes out of the smoke stack. What we don't want to
happen is for the toxic metals to get stripped out of the smoke
stack and end up in the water. We recognize that industry is
installing these air pollution controls to comply with laws and
they are doing, in effect, what we have asked them to do. But
what we are in danger of experiencing right now is pulling the
stuff out of the air and putting it in the water, and that
would not be a good outcome.
This is a place where EPA should regulate. The Agency has
already promised to set standards for safe disposal. We think
the Agency also needs to regulate the discharges that occur
from these plants as well.
Thank you for giving me that time.
Ms. Johnson. Thank you very much.
Mr. McManus.
Mr. McManus. Thank you, Madam Chair. I would like to thank
the Subcommittee for the opportunity to present this statement
on behalf of American Electric Power, the Edison Electric
Institute, and the Utility Solid Waste Activities Group.
The electric utility industry remains committed to ensuring
the integrity and safe operation of the landfills and
impoundments in which we manage coal combustion byproducts,
including coal ash. The accident that occurred at TVA is
unacceptable and, as an industry, we need to do a better job of
how we manage coal combustion byproducts. We have taken steps
to ensure the safe management of CCBs and we support efforts to
enhance current requirements and oversight.
In the wake of the spill, utility companies across the
Country, including AEP, reexamined their dam safety and
inspection activities to ensure that these programs are up to
date and functioning properly. A number of State regulatory
agencies have also conducted additional inspections of utility
impoundments to assess their structural soundness and, as we
heard earlier, EPA has initiated a nationwide effort to assess
the safety of coal combustion byproduct impoundments. We
welcome this additional level of scrutiny.
As you heard earlier, EPA intends to propose Federal
regulations for coal combustion byproduct disposal by the end
of this year. The electric utility industry has worked in a
constructive and cooperative manner with EPA and State
regulatory agencies as they have evaluated regulatory options
for CCBs, and we intend to continue that spirit of cooperation.
It is important to remember that the issue of whether CCBs
should be regulated as hazardous waste has been thoroughly
evaluated and resolved. On four different occasions, in its
1988 and 1999 reports to Congress, and in final regulatory
determinations promulgated in August 1993 and May 2000, EPA
concluded that CCBs do not warrant regulation as hazardous
waste. In its most recent determination in 2000, EPA found that
the RCRA Subtitle D, non-hazardous waste regulations, are the
most appropriate mechanism for ensuring that CCB waste disposed
of in landfills and surface impoundments are managed safely.
We agree with EPA and support development of Federal non-
hazardous waste regulation under RCRA Subtitle D that would be
implemented by the States. Such regulations would ensure that
CCBs are managed in a manner that is protective of groundwater.
We earlier heard Secretary Wilson express support for
regulation of CCBs under Subtitle D. In fact, the States have
consistently gone on record as opposing Federal regulation of
CCBs as hazardous waste, explaining that it is unnecessary and
would effectively end the beneficial use of coal ash in many
States.
Our industry remains committed to continuing and expanding
the array of beneficial uses of CCBs. In 2000, EPA concluded
that hazardous waste regulation of CCBs would place a
significant stigma on these wastes, the most important effect
being that it would adversely impact beneficial use. The States
and coal ash marketers and users agree that beneficial use
would essentially come to an end if EPA were to regulate coal
ash as hazardous.
As one example of the value of beneficial use, in 2007,
more than 13 million tons of fly ash was used to replace
portland cement, saving nearly 73 trillion Btus of energy and
reducing greenhouse gas emissions by 12.5 million metric tons.
Our industry also remains committed to protecting the
aquatic environment in the vicinity of our plants. All
discharges from power plants to surface waters, such as lakes,
streams, or rivers, are regulated through the Clean Water Act's
National Pollutant Discharge Elimination System permitting
program. Discharge permit limits are developed based on two
separate groups of standards: effluent guidelines and water
quality standards. Effluent guidelines are industry-specific
limits based on available technologies. Water quality standards
include federally established water quality criteria protecting
human health and aquatic life. If there is a reasonable
potential for a plant's discharge to exceed any water quality
criterion, the regulator will set a limit for that criterion in
the permit.
Testimony received by this Subcommittee has suggested that
discharges of metals such as selenium and arsenic from coal ash
impoundments are not protective of the environment. We do not
believe this to be the case. The NPDES permitting program
integrates the industry-specific technology-based effluent
guideline limits and the water quality-based effluent limits
into a well established, effective permitting system which is
protective of human health, fish, and wildlife.
NPDES permits must be renewed every five years. At each
five year interval, State regulators review new data on the
facility, apply an established system of analysis to the data,
and develop a new permit. This permit renewal cycle ensures
that additional discharge requirements can be established as
needed.
EPA stated earlier that it is conducting a detailed study
of the wastewater discharges of our industry as part of its
regular review of all effluent guidelines. Our industry has
actively assisted EPA with this study for more than three
years, and we will continue to engage the Agency on all aspects
of this effort.
In sum, the industry's goal is to manage coal ash safely,
with appropriate environmental protections, and to use it in
beneficial ways. We support the regulation of CCPs as non-
hazardous waste as part of a Federal CCP regulatory program
under RCRA Subtitle D, as well as dam safety inspection and
response planning requirements which collectively will protect
groundwater and surface water and ensure the structural
integrity and safety of coal combustion byproduct impoundments.
I thank the Subcommittee for the opportunity to present the
views of AEP and the industry today, and I would be happy to
answer any questions that you have. Thank you.
Ms. Johnson. Thank you very much.
Mr. Goss.
Mr. Goss. Madam Chair, Members of the Committee, and
distinguished panelists, we thank you for the opportunity to
appear today. My name is Dave Goss. I am the former Executive
Director of the American Coal Ash Association.
Our Association promotes the recycling of coal combustion
products, as we term those, which includes fly ash, bottom ash,
boiler slag, and air emission control residuals such as
synthetic gypsum. It is our opinion that the EPA's regulatory
determinations, both in 1993 and again in 2000, are still
correct and that CCPs do not need to be regulated as a
hazardous waste.
The recycling of these materials is really a tremendous
success story. We have displaced over 120 million tons of
greenhouse gases alone since the year 2000. During that same
period, approximately 400 million tons of CCPs have been
recycled into a variety of applications: road construction,
architectural work, agriculture, mine reclamation, mineral
fillers in paints and plastics, wallboard panel products, soil
remediation, and many other uses that would have required other
materials to be excavated or mined had these not been
available.
The use of CCPs goes back 40 years. In the last three
decades, the EPA, other Federal agencies, numerous universities
and private research institutes have extensively studied CCP
impact on the environment. The Department of Energy and the
Department of Agriculture have both funded, evaluated, and
conducted certain mining and land test applications and studies
using a variety of these materials. Consistently, these Federal
agencies found that, when properly characterized, managed, and
placed, CCPs do not have a harmful impact on the environment or
on public health.
The EPA reported to Congress in March of this year the
results of data collected and analyzed by the Agency from the
TVA spill at the Kingston station. That data showed there were
no exceedances in drinking water quality or air quality
standards, and the information was based on hundreds of water
samples and over 26,000 air samples.
Furthermore, State Departments of Transportation, using
environmental and technical guidelines set by the American
Society for Testing Materials, Federal Highway Administration,
and the American Association of State Highway and
Transportation Officials, have used millions of tons of CCPs
without incident or risk.
The goal of this Committee, I believe, should be, in part,
to understand how the use of CCPs has had and can continue to
have a positive impact on our Nation's resource conservation
goals. They have been and should remain a key part of resource
conservation efforts because CCPs, safely used in lieu of
earth, clays, aggregates, or soils, helps promote a zero waste
goal. Fly ash, bottom ash, and synthetic gypsum are used to
replace the production of portland cement, which in turn
reduces significant carbon dioxide emissions and similarly
conserves other natural resources. There are national and
international protocols that recognize the greenhouse gas
reduction benefits of using these materials.
When fly ash is used in concrete, it produces longer
lasting, more durable structures and pavements. Nearly half the
concrete placed in the United States incorporates fly ash
because it makes concrete better. We, in fact, I believe, would
need Congressional support to promote a green supply chain and
further encourage higher replacement rates of fly ash and
broader usage. Building longer lasting concrete structures by
using fly ash allows our Country to move forward towards a
greener and more sustainable economy: less rebuilding in the
future, lower life cycle costs, and fewer CO2 emissions.
A key part of the strategy of recycling industrial
materials must be to minimize their need for landfills or
disposal facilities. By recycling fly ash and concrete, we bind
the fly ash into a matrix, significantly eliminating the
potential for any impact on water resources. Beneficial use
regulations are crafted at the State level to promote recycling
and accommodate local environmental conditions.
The recycling of nearly 43 percent of the 130 million tons
of CCPs produced annually is an excellent example of
environmental stewardship and sustainability. Any effort by EPA
or Congress to designate coal ash as hazardous, even if only
for the purposes of disposal, could have a dramatic impact of
eliminating nearly all these safe beneficial uses. America
would have to find environmentally safe disposal facilities for
130 million tons more of the CCPs produced annually. Producers
and end-users would no longer use CCPs because of the stigma
that a ``hazardous'' designation would have. Recycling would
end, in our opinion, due to the cradle to grave liability
associated with a hazardous waste label.
This Nation should develop a culture where safe use and
reuse of products and waste streams conserves our Nation's
resources. CCPs have played and should continue to play an
important role in sustainability. Ample technical guidance is
available to ensure the environment is protected, while still
recycling millions of tons of these resources. State specific
regulatory guidance will be best able to address local
conditions.
As part of the recent economic stimulus efforts supported
by the President and Congress, green building has been
highlighted. We believe that a key component is the creation of
a green supply chain. Developing green jobs as part of the
green supply chain and implementing projects that include safe
recycling of CCPs should be a vital part of these projects.
With an emerging focus on greenhouse gases, the recycling of
CCPs contributes measurably to the reduction of CO2 and should,
therefore, be encouraged more aggressively. We must better
manage our scarce natural resources by using and recycling our
existing industrial mineral resources, including CCPs.
Thank you for this opportunity to speak.
Ms. Johnson. Thank you very much.
Dr. Conrad Volz.
Mr. Volz. Thank you very much, Madam Chair. I am from
Pittsburgh, the smoky city. Just to let you all know that we
can't even, in our city, monitor for and do high-tech
experiments without putting millions of dollars into research
laboratories to filter out all the fly ash that has been put
into air over the last century of coal burning in Pittsburgh.
You cannot drive in Pittsburgh five miles without driving past
a coal pile, coal ash pile, or driving over a mine fill that
has coal ash. It is a very serious problem in our area.
My research is focused on using fish and aquatic receptors
as indicators of pollution sources and as sentinels for human
health, and I am funded by the Centers for Disease Control, the
environmental public health tracking network, to do this.
My testimony today to you concerns known water quality
impacts of coal combustion waste storage, including evidence
that, number one, coal combustion waste mixtures have direct
ecotoxicological effects on aquatic animals, without question;
two, trace toxic elements from coal combustion waste
impoundments enter groundwater and are known to contaminate
drinking water resources; three, the predominant location of
fly ash piles and coal combustion waste surface impoundments
near large surface water drinking sources creates an
unreasonable threat to public health and the environment; and
that, four, the placement of fly ash piles and coal combustion
waste impoundments constitutes a major environmental justice
issue to communities across the United States.
Table 1 in my written testimony lists 16 studies, from the
peer review to academic literature, that demonstrates that coal
combustion waste has direct effects on aquatic animals. Many of
these species are fellow vertebrate animals with similar
hormone signaling systems to humans, and are, thus, the canary
in the coal mine for human health effects.
Coal combustion waste effects in the southern toad have
been extensively studied. Ash-exposed toads exhibited elevated
levels of 11 metals, including a 47 percent increase for lead
and over a 5,000 percent increase for arsenic. These studies
suggest that coal combustion waste trace metals are associated
with decreased respiratory quotients in these animals, and many
of the metals in coal combustion waste are pulmonary toxicants,
even if they are ingested in water, just as in humans.
In a study that assessed concentrations of numerous metals
in whole bodies of larval and adult life stages of toads after
exposure to coal combustion waste, it was found that selenium
and strontium concentrations remained elevated in later life
stages. This study demonstrates that toads and frogs exposed to
metals in fly ash ponds can move these trace metals to
uncontaminated terrestrial and aquatic environments.
In study of the bird-common grackle feeding in coal
combustion waste basins and turtles raised in ash basins,
selenium was found in significantly higher concentrations in
ash basin eggs and in reference eggs. Selenium contamination
represents one of the few clear cases where environmental
pollution has led to devastation of wildlife populations
directly from power plant coal fly ash receiving ponds.
Elevated concentrations of selenium have degraded many
freshwater ecosystems throughout the United States.
It has also been observed that as much as 8 percent of
total chromium is converted to chrom6 during oxidative
combustion of coal, and remains in the resulting ash and is
significantly mobile in water-based leaching. Thus, chrom6, a
known human carcinogen and pulmonary toxicant, can enter
groundwater and can run off of coal combustion waste sites into
tributary streams. There is no known safe level of exposure to
chrom6. Any increase in its concentration in water carries with
it an increased risk of the development of cancer in humans.
I am going to end there and, please, I would like to enter
my complete testimony with you. Thank you.
Ms. Johnson. Thank you very much.
We will begin our first round of questions.
Mr. Schaeffer, I would like to ask you a couple of
questions. In your testimony, you note that we should not have
to make a choice between cleaner air or dirtier water. Would
you explain what you mean by that in more detail?
Mr. Schaeffer. I would be glad to, Madam Chairman. The
piles of ash and sludge that are generated by power plants are
primarily driven by the fact that the companies have to remove
air pollutants from the stack, and the Clean Air Act requires
them to do so and we recognize that. The problem is that the
residue, the waste from that process, has been largely
unregulated, and that is where the problem comes from.
So we need to close the loop. We need to make sure that the
waste that is generated from burning coal is properly
regulated. EPA has promised to do that. We do think it should
be regulated as the hazardous material it is when it is
disposed of, and we think you can do that in a way that
encourages recycling. And we think if you are going to
discharge wastewater that comes off those processes, you ought
to have to meet Clean Water Act limits for toxic metals, just
as other industries have to do.
So, again, we understand the industry is complying with the
Clean Air Act when they put the pollution controls in--that is
good--but they create mountains of waste, 130 million tons a
year now, and that amount is growing, and we need to make sure
that that waste isn't creating another kind of problem.
Ms. Johnson. In light of the information that is available,
did EPA's enforcement program over the past eight years fulfill
its responsibility for enforcement with regard to both the
known damage and potential ash damage cases?
Mr. Schaeffer. I came out of the enforcement program at
EPA, so they are my colleagues. I think the program has come
late to this issue and I probably share responsibility for
that. In the last 1990s we were very focused on getting
scrubbers into large coal plants. We wanted that to happen
because the air pollution can be very bad if you don't scrub
the toxins out of the stack and if you don't take sulfur
dioxide out of the stack.
So I gave you the Big Bend in Tampa as an example of where
lots of selenium appears now to be coming off the scrubber
sludge and going into Tampa Bay. I was part of the discussions
that led to the settlement and we celebrated the fact that that
plant was going to put in a scrubber, because we knew it was
going to clean up air pollution. Quite honestly, we did not
focus on the other problem, which is the sludge coming off that
process could eventually create a problem for water.
So I don't want to be too hard on the enforcement program
because they were very fixed on one set of problems. I think
they have said they are looking hard at this issue now and they
are willing to take some action.
Ms. Johnson. Do you think they are overwhelmed with the
responsibilities?
Mr. Schaeffer. I do. It is a big Country, lots of sources.
People would be surprised to learn how thinly staffed
enforcement is. I think the Agency, at one point--and I don't
think it has changed--had about 30 staff nationwide to handle
all wetland violation issues. We have a couple hundred million
acres of wetlands; 30 people to patrol that. So they are
understaffed and overwhelmed, and I think that is true of State
agencies as well.
Ms. Johnson. One last question. Just as I was leaving, one
of the people sitting out there indicated that they are
interested in recycling this waste and making something
positive out of it for a green project. Do you think that the
reuse can be dealt with?
Mr. Schaeffer. Sure, if the question is addressed to me as
well. I think Mr. Goss has pointed out the benefits of
responsible recycling of fly ash, the greenhouse gas reductions
you can get. There are safe ways to recycle and reuse fly ash,
and that is a very good thing. That is not inconsistent with
regulating the disposal of ash as a hazardous waste. EPA makes
those distinctions all the time. EPA has programs that
recognize that disposal is a long-term problem. When you are
handling hazardous waste, you need tight regulations.
And then they create conditional exemptions for safe
recycling. You can, today, take quite toxic waste, put it into
a coal plant boiler and burn it without that waste being
considered hazardous, because it is recognized that when you do
that you are destroying the material. It is organic, you are
eliminating it, so problem solved. There is a way to regulate
disposal as hazardous and treat responsible recycling as
basically exempt as long as certain rules and practices are
followed, and EPA has a track record of doing that.
Ms. Johnson. Thank you very much.
Mr. Boozman.
Mr. Boozman. Mr. Schaeffer and Dr. Volz, you presented some
data showing there were areas in the Country that are doing a
poor job, evidently, and I think we would all agree with that,
that that is inappropriate. I think, as Mr. Oberstar alluded to
with the other panel, we all agree that we have to ensure that
this stuff is secured properly, however we secure that.
You mentioned these areas that are doing a poor job. In
your data, did you find any of the new units where you didn't
see the increases that you are talking about?
Mr. Schaeffer. To make sure I understand your question----
Mr. Boozman. Did you measure any sites that you didn't see
the extremely elevated areas like you are talking about around
coal-fired----
Mr. Schaeffer. Our analysis, the information we presented
to the Committee, focuses on what is discharged from pipes or
ditches at these plants, and in some cases the processes
leading to the discharge are relatively new. That is because
the plant has only recently installed a scrubber. It turns out
that scrubber sludge can be highly toxic and the wastewater
that comes off it can be pretty hot, and that is certainly true
for a pollutant like selenium. So we didn't look at the age of
the plant or the age of the----
Mr. Boozman. I guess what I am saying, though, is that in
the plants you monitored, you showed us the plants that were
doing a poor job, where you had increased levels.
Mr. Schaeffer. Right.
Mr. Boozman. Did you find plants that were doing a good
job, where the levels were much less elevated, as opposed to
the data you presented?
Mr. Schaeffer. We did. We found a handful of plants where
the reported discharges are quite a lot. I don't think we can
distinguish based on whether it is a new or old; it may have to
do with the treatment process.
The other thing I do have to point out is there is actually
very little monitoring that is done, so the number of plants we
were able to get the data for--and it all comes from EPA--was a
pretty small universe. So plants that we didn't look at,
weren't able to look at, could be doing significantly better;
they could be doing much worse. We know some plants are trying
to keep the waste onsite and avoid discharging altogether, and
if the waste can be safely managed onsite and you are not
putting the toxics into the stream or river, that is obviously
a better thing.
Mr. Boozman. How about you, Dr. Volz, did you find plants
that did not show, with the water that they were discharging
did not show the high levels that you are talking about?
Mr. Volz. I think I can generally say that the newer
impoundments that are lined, we don't see the problem of
groundwater intrusion that we are seeing in the unlined
impoundments. That, I can say for sure. There is a problem,
though, and one of the major problems, quite frankly, is this
reliance that we have on coal and burning huge quantities of
coal.
We don't know what to do with the waste anymore. We are
overburdened with this waste. We are filling up ash piles at
rates that are unsustainable. And even those that have liners,
we can't keep up with the rise in the levels of these plants,
so we have runoff from them.
So, yes, the liners do help, they stop the downward
hydrogeological movement of these movements. But we still are
going to have a problem because the water is creeping up the
hollows from Pennsylvania into West Virginia and into Ohio.
Mr. Boozman. You mentioned the increased stuff in the air.
Does Pittsburgh have a significant increase in cancer compared
to the rest of the Country?
Mr. Volz. Pittsburgh has some cancer rates that are high.
The problems, though, that we see in Pittsburgh are more
related to problems of premature birth, as well as low birth
weight; and that is found in some of these areas that they are
environmental justice areas where there is coal-fired plant
waste storage.
Mr. Boozman. I agree. We have a problem. I think we all
would agree that we have to deal with the waste. I think you,
Mr. Schaeffer, unintended consequences, and I would just
encourage us to look at the plants that are doing a good job,
to focus not only on the ones that are doing the bad job, but
to focus on the ones that are doing, and see what the
difference is.
Then, the other thing is really think through the
designation of the hazardous waste in the sense that we are not
going to be done with coal tomorrow. No matter what we decide
on, it is going to be around, I think, for many, many years. So
as we do a better job of scrubbing and whatever, we are going
to have even increased residue.
So I appreciate your testimony and yield back, Madam Chair.
Ms. Johnson. Thank you very much.
Mr. Hare.
Mr. Hare. Thank you, Madam Chairman.
Mr. McManus, in your testimony, you state ``Testimony
received by this Subcommittee has suggested that discharges of
metals such as selenium and arsenic from coal ash impoundments
are not protective of the environment. We do not believe this
to be the case.'' Does American Electric Power believe that the
discharge of arsenic and selenium into the rivers is actually
safe? And if you do, at what levels are the discharges of these
two substances not safe?
Mr. McManus. I believe the discharges at an appropriate
level can be safe. Those levels can be established in the NPDES
permit, the water discharge permit. Those permits are developed
with the State regulatory agencies, looking at circumstances
around that individual facility, the water body that is being
used to discharge into, the characteristics of that water body,
the size of it.
So there is not necessarily a specific level that applies
across the board, but through that permitting process we can
work with the agencies to establish that appropriate level and
then manage our facilities to ensure that we stay within those
levels. If that requires some additional treatment of that
discharge, then we can put that in.
As has been pointed out by Mr. Schaeffer, we are installing
a lot of scrubbers across the Country these days. What we have
seen at AEP is, as we designed those scrubbers and looked at
how it changes the characteristics of the water discharge, we
are putting on additional water treatment facilities so that we
are dealing with this issue that was brought up, of moving
these materials from one medium to another medium to ensure
that, overall, we are being protective of the environment both
from the air emissions and from the water discharge.
Mr. Hare. Are selenium and arsenic not permitted to be
discharged?
Mr. McManus. We have limits in some of our permits; we
don't have limits in all of our permits. In some cases we have
monitoring requirements so that the agencies can see what those
levels are and establish limits if they believe it is
appropriate.
Mr. Hare. Well, just to be candid, I would tell you I don't
know what the level would be, but I think selenium and arsenic
in any type of measure into water would be a dangerous thing.
Dr. Volz, let me ask you. You described environmental
justice impacts. I wonder, can you elaborate on what you mean
by that and can you give us something on the findings you had
from that?
Mr. Volz. Sure. We are a community-based participatory
research outfit at the Center for Health Environments and
Communities, and we work with communities that are affected by
a number of pollution source. I will tell you that as
communities around these large ash impoundments, the people
there are not only exposed or potentially exposed to
groundwater sources, they are exposed to the air pollution also
from the coal powered plants that are very close.
Oftentimes, these are industrial valleys, where there is
legacy pollution problems from steel mills that aren't there
anymore. These areas, actually, people move away from, if they
can, to more healthy and aesthetically pleasing areas, leaving
essentially behind a tax base that is shattered, both
municipally and for school districts, with the resulting
consequence, quite frankly, that the Federal Government and
State government has to come in and fund these school districts
and municipalities to keep them going, and this is an
unrecognized subsidy to the coal-fired plant industry.
Mr. Hare. I am running out of time, and not to put words in
your mouth, but given the evidence and the harm from coal
combustion waste, I would assume that you would like to phase
out the impoundments in favor of dry storage of the waste?
Mr. Volz. Well, I think we need to stop adding any
additional waste to unlined impoundments. That needs to stop
right away. And we have to cover these impoundments, because
any air movement over the top of the areas that dry entrains
particles with up to 30 percent respirable dust in them, and
people are inhaling this dust and it is full of arsenic,
chromium, lead, cadmium, and even radionucleides.
Mr. Hare. Thank you, Madam Chair.
Ms. Johnson. Thank you very much.
The Chair now recognizes the distinguished Chair of the
Full Committee, Mr. Oberstar.
Mr. Oberstar. Thank you, Madam Chair.
Mr. Schaeffer and Mr. Volz, what are the health
consequences of ingesting selenium and arsenic at the levels
shown in your charts on aquatic creatures, frogs, toads, fish,
shellfish, and those at the top of the food chain, humans?
Mr. Volz. Well, we have done studies in the Allegheny River
near Pittsburgh where we have some natural background levels of
about .2 to .3 parts per billion of selenium. We find that
there are ecotoxicological effects on freshwater mussels at
only 3 to 5 times that level, meaning at about 1 part per
billion.
The problem with selenium is that it is highly
bioaccumulative. It moves through the food chain and top level
predators actually, just like mercury, bioconcentrate it in
their tissues. It is in a very complex cycle cycling through
the aquatic system, and we found bioconcentration factors in
the literature showing concentration in aquatic species of over
773 times in their tissue those concentrations found in water.
Mr. Oberstar. And what is the health consequence to those
aquatic creatures?
Mr. Volz. They are many and varied. Freshwater mussels
essentially develop gill filament problems; they are unable to
breathe. Fish have endocrine systems much like our own.
Selenium is known to cause jaw malformations and other problems
in aquatic creatures, including fish, and especially even eggs,
once they are laid, can accumulate selenium, or it can be
transferred from the mother through the egg to the fish.
Mr. Oberstar. I was interested in your comment about
Pittsburgh and its current state. I remember Pittsburgh in
1955, the summer of 1955. I was a student driving with my
classmates to Quebec; I was going there because I had won a
scholarship to study French at Laval University. We went
through Gary and Hammond, and you couldn't see across the city.
I thought I had gone to heaven because this is where the
iron ore went from the iron ore mining country that I grew up
in, and this is what happens to it, it now becomes steel. When
you got to Pittsburgh, and your eyes, by then, were smarting
and your skin was irritated, and I thought, oh, this is heaven,
there are jobs here. But what a price we are paying.
Then, some years later, when I was administrative assistant
to my predecessor, John Blatnik, whose picture is over there in
the corner, there was a steelworker convention in Duluth. A
busload of steelworkers came to Hotel Duluth and they unloaded.
One of them rushed through the lobby to the pay phone, called
home--this was, of course, the days before cell phones--got his
wife on the phone and he said, honey, you can't believe this
place; people breathe air they can't see.
Those are the consequences of the industrial revolution.
Mr. Volz. Yes.
Mr. Oberstar. And we are living with those now, and our
challenge is to contain them. So, on the one hand, as you have
described, the air pollution controls on power plants removed
toxic substances from the air and now put it in sludge that is
on the ground. So it is very likely that the concrete blocks
that I was working with, made of coal ash, were cleaner than
concrete blocks made of coal ash today, because the selenium
and the arsenic and the other toxic components were in the air
at that time and they landed some place else.
Mr. Volz. I agree totally.
Mr. Oberstar. They didn't go into the coal ash that was
made into ready-mix or concrete blocks. I hadn't thought about
this.
Mr. Volz. As we get more efficient with our air cleaning,
we make fly ash more toxic.
Mr. Oberstar. Now, Mr. Schaeffer and Dr. Volz, what about
the effect on groundwater? If these retention facilities do not
have an impermeable layer either of a very thick Mylar plastic
or other material or an extremely dense clay layer that is
virtually impermeable, what is the likelihood of seepage into
groundwater of these toxic materials?
Mr. Volz. It is actually highly likely. It is more likely
the more literature you read, because particularly species of
arsenic do not exist as metallic arsenic, they exist as oxy-
anionic species of arsenic in freshwater, and although the
prevailing wisdom is that metals will not be mobile when we
increase pH, as we do in these fly ash pits, we have evidence
that oxy-anionic species of arsenic actually increase mobility
through these matrices because they actually compete with the
hydroxide that is mixed in with the fly ash for binding sites.
And we have evidence that it is going into groundwater,
especially during summer months, when we have particularly low
levels of rain and we have that part of surface water actually
makes up more of the groundwater.
Mr. Oberstar. So if you have an acidic environment that is
conducive to absorbing these oxy-anionic materials and making
them available, then, to uptake in plant, then you have a
higher likelihood of toxic effect on humans, at the top of the
food chain, and other aquatic species.
Mr. Volz. Essentially, under conditions that we are seeing
now, we think that there is quite a bit----
Mr. Oberstar. Do these facilities have monitoring wells at
distances out from the containment facilities? Are there
groundwater monitoring wells?
Mr. Volz. There are in some cases, but I believe that they
are totally insufficient.
Mr. Oberstar. Okay.
Mr. Schaeffer. Mr. Chairman?
Mr. Oberstar. Yes.
Mr. Schaeffer. Just to add one point. EPA has pretty
extensive data that I think will answer your question, or at
least help to answer it. For example, they have a risk
assessment, very comprehensive, that estimates the chances of
getting cancer if you are in an area around an unlined pit or
pond that is used to store fly ash; and that is, we think, a
pretty conservative methodology that they have used. I am sure
they would be glad to provide it to you and explain.
Mr. Oberstar. I will request that.
Rainwater tends to be neutral or better, and in itself
would not be conducive to freeing such materials for uptake,
such metals for uptake. But there is acidity in the fly ash
itself that would contribute to the acidification, right, to
the absorbability of toxics? Is that correct?
Mr. Volz. Well, essentially, we still have a problem with
acid rain in this Country, not only from our own sources, but
from foreign sources, and the problem is that we also see
mobility of metals because these lagoons are not just being
pumped full of fly ash, they are settling basins for
essentially drainage of rain, and acids that go into them
actually can help mobilize metals also.
Mr. Schaeffer. Just one quick point, Mr. Chairman. The
National Research Council 2006 study makes the point--I think
EPA agrees--that acidity can drive the release of some metals;
others will be mobilized under more alkaline or neutral
conditions. I think arsenic is one of those contaminants.
Mr. Volz. Arsenic is one of them.
Mr. Schaeffer. So certainly the acid content of rain can
make a dramatic difference, but there are other cases where,
even at neutral or alkaline levels, you can get release.
Mr. Oberstar. Thank you, that is very helpful to understand
this in its total context.
Mr. McManus, you said you would support regulation of coal
combustion byproducts as non-hazardous waste, is that correct?
Mr. McManus. That is correct.
Mr. Oberstar. What do you mean by regulation? What is your
understanding of regulation?
Mr. McManus. Regulation under RCRA Subtitle D program,
which is the program EPA talked about earlier that they are
planning to issue a proposal by the end of the year. So we are
supportive of a regulatory program at the Federal level, but
under Subtitle D, as opposed to Subtitle C or hazardous waste.
Mr. Oberstar. Would you, then, in that context, support a
national standard for coal storage facility integrity?
Mr. McManus. We see that as a separate but related issue,
and we definitely see that there is some value in having either
some type of Federal standard or Federal guidelines, because
even in my company--we operate in a number of States--we see
differences in how our States apply dam safety and structural
integrity requirements. So we think we have good programs at
our plants and in our States, but we see value in some type of
a Federal standard, at a minimum, and that makes sense to us.
Mr. Oberstar. I raised the question because I think there
are two issues at stake here. There is the release of materials
that are hazardous to the health of humans and to aquatic
vegetation and fauna, but there is also the hazardous effect of
a structural failure that sends a wall of water or ash material
or anything else that wipes out homes and facilities and lives
in the process.
So regulating the discharge for its health consequences is
one issue, but regulating the structure, the containment
structure that is kind of a different issue. I think we need
two elements here: you need liner materials or standards for
liners in these retention basins so that toxic materials are
not leaking into groundwater. We have such standards for solid
waste facilities. Landfills that are now being used throughout
the country, and have been for many years, have very rigorous
liner standard requirements.
But we also need both standards for the retention
facilities themselves and some frequency of inspections of the
retention facilities themselves. Do you support the latter?
Mr. McManus. In terms of the inspection frequency,
absolutely, and that is something that the industry is prepared
to work with, whatever the appropriate agency is, whether it is
EPA or another agency, to come up with an appropriate standard.
The effort that EPA has underway now that they talked about
earlier, this information collection request, is a good first
step in developing that information base on what is out there,
what are the standards for inspection, what is done at the
State level, and then use that to build an appropriate program.
Mr. Oberstar. What are the standards that you use? Mr.
Goss, you are representing the Fly Ash Association. I didn't
realize there was an association for fly ash--there is an
association for everything in this country. Everyone has a
right to be represented.
Mr. Goss. Yes, sir.
Mr. Oberstar. So even the lowly fly ash needs to be
elevated to a standard of representation.
Whose standards, that is, which agency standard or private
engineering standards, are used in the construction of these
retention facilities, whether you call them levees or dams or
just retention basins?
Mr. Goss. Well, sir, I am probably not the right one to
answer that question. We focus on the beneficial use. The
standards that would apply to the beneficial use I could
answer. The disposal facilities I would have to defer to maybe
one of the other panelists.
Mr. Oberstar. Mr. McManus?
Mr. McManus. At least speaking for AEP, we rely on,
initially, guidelines that are developed by FEMA, the Federal
Emergency Management Association----
Mr. Oberstar. FEMA?
Mr. McManus.--in terms of how you manage and how you
determine the risk of an impoundment or a dam, and whether that
is fly ash impoundments or whether it is cooling water
impoundments that we have at some plants, whether it is
hydroelectric dams. We use FEMA guidelines or we may use FERC
requirements as it relates to ensuring the structural integrity
of those facilities.
Mr. Oberstar. I am puzzled by that. I have been associated
with FEMA, its oversight, its structure, its operation for
probably 30 years, when it was the Civil Defense Organization.
I didn't know they promulgated standards for impoundments.
Mr. McManus. This is an area that we will check on and get
accurate information.
Mr. Oberstar. It would seem to me that the Corps of
Engineers would be the authoritative organization, then there
are civil engineering standards for dams and there is a certain
aspect, height to base ratio, that has to be followed to assure
the retention strength of the structure itself. And we are
having those issues reviewed by the Corps of Engineers now for
levees all along the Mississippi River. We are seeing vastly
greater weather events, greater in intensity and volume of
water discharge from storms, and the levees seem to be
inadequate to stand up to these increased weather events,
increased intensity weather events.
So it would seem to me that the integrity of these
facilities needs to be revisited.
Earlier, I asked the question of whether these are built up
on a pancake basis, just straight up, and didn't get an answer
to that question; EPA doesn't know. When you increase the
height, you also have to increase the base to improve the
retention strength.
You don't know the answer to those questions?
Mr. McManus. The earlier question about the pancake I think
was specific to Kingston, and I am not familiar with that.
Mr. Oberstar. Okay.
Mr. McManus. But we will check on what kind of standards
that we apply and make sure you have accurate information. And
I may have misspoken, I think the FEMA guidelines are more in
determining what is considered a high hazard facility and what
kind of----
Mr. Oberstar. That would be more appropriate, yes.
Mr. McManus.--what kind of emergency action plan
requirement you may have in public response if you see an
issue. So FEMA is probably more related to that aspect, as
opposed to the actual engineering standards of an impoundment.
Mr. Oberstar. [Presiding] Mr. Boozman, do you have any
further questions?
Mr. Boozman. The only thing I would like to--you being
around a long time and helped write a lot of this stuff. And I
think you described it very well. We are talking about the
integrity of the structure; making sure that it doesn't burst
like it did, making sure it doesn't leach out with a liner or
depending on the soil, or however you determine those things.
Then, the other thing is ultimately some of that is
actually discharged into the stream, and I guess I am wondering
why, through the permitting process that EPA doesn't already
control that and why you have these very, very high--now, we
had testimony that they had found situations, plants located
around that actually had--that that was good water that was
being--I guess what don't understand and get a little
frustrated with is why, under the current Clean Water Act, why
they can't enforce that through the permitting process to do
away with the situation in Miami and some of these really----
Mr. Oberstar. It seems to me that EPA should have Clean
Water Act pollutant discharge regulatory authority for--and to
treat any discharge from such facilities that are, or have,
point sources. If they have a pipe discharging into a ditch, it
ought to be regulated and ought to be subject to existing EPA
authority under the Clean Water National Pollution Discharge
Permit authority. We will pursue that further with EPA.
Mr. Hare, do you have any further questions?
Mr. Hare. No.
Mr. Oberstar. Anything that any of the witnesses want to
add for the good of the order?
[No response.]
Mr. Oberstar. Thank you very much for your contribution.
There are a number of issues we will have to pursue further. We
want to assure the integrity of these impoundment structures,
whether they are levees, dams, or just simple impoundments,
both the structure itself and protecting its internal construct
from leakage or seepage into groundwater.
Thank you very much for your contributions.
The Committee is adjourned.
[Whereupon, at 12:52 p.m., the Subcommittee was adjourned.]
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