[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

                               ----------
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49-495 PDF                       WASHINGTON : 2009 

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             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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