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




 
                 COAL COMBUSTION BYPRODUCTS: POTENTIAL
                IMPACT OF A HAZARDOUS WASTE DESIGNATION
                          ON SMALL BUSINESSES
                       IN THE RECYCLING INDUSTRY

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

                                HEARING

                               before the


                      COMMITTEE ON SMALL BUSINESS
                             UNITED STATES
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                              HEARING HELD
                             JULY 22, 2010

                               __________

                               [GRAPHIC] [TIFF OMITTED] TONGRESS.#13
                               

            Small Business Committee Document Number 111-075
Available via the GPO Website: http://www.access.gpo.gov/congress/house
?



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                   HOUSE COMMITTEE ON SMALL BUSINESS

                NYDIA M. VELAZQUEZ, New York, Chairwoman

                          DENNIS MOORE, Kansas

                      HEATH SHULER, North Carolina

                     KATHY DAHLKEMPER, Pennsylvania

                         KURT SCHRADER, Oregon

                        ANN KIRKPATRICK, Arizona

                          GLENN NYE, Virginia

                         MICHAEL MICHAUD, Maine

                         MELISSA BEAN, Illinois

                         DAN LIPINSKI, Illinois

                      JASON ALTMIRE, Pennsylvania

                        YVETTE CLARKE, New York

                        BRAD ELLSWORTH, Indiana

                        JOE SESTAK, Pennsylvania

                         BOBBY BRIGHT, Alabama

                      DEBORAH HALVORSON, Illinois

                  SAM GRAVES, Missouri, Ranking Member

                      ROSCOE G. BARTLETT, Maryland

                         W. TODD AKIN, Missouri

                            STEVE KING, Iowa

                     LYNN A. WESTMORELAND, Georgia

                          LOUIE GOHMERT, Texas

                         MARY FALLIN, Oklahoma

                         VERN BUCHANAN, Florida

                      BLAINE LUETKEMEYER, Missouri

                         AARON SCHOCK, Illinois

                      GLENN THOMPSON, Pennsylvania

                         MIKE COFFMAN, Colorado

                  Michael Day, Majority Staff Director

                 Adam Minehardt, Deputy Staff Director

                      Tim Slattery, Chief Counsel

                  Karen Haas, Minority Staff Director

        .........................................................

                                  (ii)

  
?

     SUBCOMMITTEE ON RURAL DEVELOPMENT, ENTREPRENEURSHIP AND TRADE

                                 ______



                 HEATH SHULER, North Carolina, Chairman


MICHAEL MICHAUD, Maine               BLAINE LUETKEMEYER, Missouri, 
BOBBY BRIGHT, Alabama                Ranking
KATHY DAHLKEMPER, Pennsylvania       STEVE KING, Iowa
ANN KIRKPATRICK, Arizona             AARON SCHOCK, Illinois
YVETTE CLARKE, New York              GLENN THOMPSON, Pennsylvania

                                 (iii)

  
?



                            C O N T E N T S

                               __________

                           OPENING STATEMENTS

                                                                   Page

Shuler, Hon. Heath...............................................     1
Luetkemeyer, Hon. Blaine.........................................     2
Bright, Hon. Bobby...............................................     3

                               WITNESSES

Feldt, Ms. Lisa, Deputy Assistant Administrator, Office of Solid 
  Waste and Emergency Response, U.S. Environmental Protection 
  Agency.........................................................     4
Benson, Dr. Craig H., Wisconsin Distinguished Professor, 
  University of Wisconsin- Madison...............................    17
Adams, Mr. Thomas H., Executive Director, American Coal Ash 
  Association....................................................    19
Cooper, Ms. Lisa, Senior Vice President and Owner of PMI Ash 
  Technologies, LLC..............................................    20
Stehly, Mr. Richard D., President, American Concrete Institute, 
  and Principal, American Engineering Testing, Inc...............    22
Gehrmann, Mr. William H., President, Headwater Resources, Inc....    23
Garbini, Mr. Robert A., President, National Ready Mixed Concrete 
  Association....................................................    25
Bross, Mr. Jeffrey, President, Bross Construction................    27

                                APPENDIX


Prepared Statements:
Shuler, Hon. Heath...............................................    31
Feldt, Ms. Lisa, Deputy Assistant Administrator, Office of Solid 
  Waste and Emergency Response, U.S. Environmental Protection 
  Agency.........................................................    33
Benson, Dr. Craig H., Wisconsin Distinguished Professor, 
  University of Wisconsin- Madison...............................    40
Adams, Mr. Thomas H., Executive Director, American Coal Ash 
  Association....................................................    45
Cooper, Ms. Lisa, Senior Vice President and Owner of PMI Ash 
  Technologies, LLC..............................................    52
Stehly, Mr. Richard D., President, American Concrete Institute, 
  and Principal, American Engineering Testing, Inc...............    78
Gehrmann, Mr. William H., President, Headwater Resources, Inc....   145
Garbini, Mr. Robert A., President, National Ready Mixed Concrete 
  Association....................................................   151
Bross, Mr. Jeffrey, President, Bross Construction................   158

Statements for the Record:
Letter from American Coal Ash Association. to EPA................   161
Letter from Full Circle Solutions, Inc. to EPA (SB Advocacy).....   163
Letter from EPA (SB Advocacy) to Full Circle Solutions, Inc......   166
Letter from EPA to Hon. Heath Shuler.............................   167
Stehly, Mr. Richard D.,American Concrete Institute, and 
  Principal, American Engineering Testing, Inc...................   168
Statement from Mr. Jerry Liner, Carolina Stalite and Johnson 
  Concrete.......................................................   196

                                  (v)

  


                   SUBCOMMITTEE ON RURAL DEVELOPMENT,
                   ENTREPRENEURSHIP AND TRADE HEARING
                     ON COAL COMBUSTION BYPRODUCTS:
                    POTENTIAL IMPACT OF A HAZARDOUS
                       WASTE DESIGNATION ON SMALL
                  BUSINESSES IN THE RECYCLING INDUSTRY

                              ----------                              


                        Thursday, July 22, 2010

                     U.S. House of Representatives,
                               Committee on Small Business,
                                                    Washington, DC.
    The Subcommittee met, pursuant to call, at 10:00 a.m., in 
Room 2360, Rayburn House Office Building, Hon. Heath Shuler 
[chairman of the Subcommittee] presiding.
    Present: Representatives Shuler, Bright, Dahlkemper, 
Luetkemeyer, and Thompson.
    Chairman Shuler. This hearing is called to order.
    The subcommittee has called this hearing so that members 
might learn more about coal ash, the small businesses that turn 
coal ash into useful products and the concerns that these 
businesses have about the proposed Federal regulations that 
they believe may have a negative effect on their industry. We 
hear a lot of terms today in this hearing, like CCB, CCR, CCP 
and CCW. In essence, all these refer to coal ash.
    What we will focus on this hearing are the types of coal 
ash that are beneficially reusable.
    Coal ash contains elements that can be harmful to the 
environment and to human health unless it is properly stored or 
disposed of.
    The environmental community has long called for increased 
Federal regulations of coal ash in order to ensure greater 
protection. I am in complete agreement with this concept. The 
EPA has recently issued two proposals for regulating coal ash. 
One would regulate coal ash as a solid waste and would provide 
very limited Federal enforceability and may not provide 
adequate protection of the environment and human health. The 
other would list coal ash as a special waste under the 
Hazardous Waste Subtitle in the Resource Conservation and 
Recovery Act, Subtitle C.
    The second option is one that we will focus on today's 
hearing since it has generated great concerns among small 
businesses across this country. These businesses, many of which 
are represented here today, have reason to believe that 
regulating coal ash under Subtitle C, even as a special waste, 
will open recycling operations to added litigation and a stigma 
that will discourage the products and use of the products made 
with recycled coal ash.
    Some of these small businesses believe that these negative 
effects are already occurring within their industry. If the 
prediction of those in the coal ash recycling businesses are 
accurate, EPA regulation of coal ash under Subtitle C will 
greatly harm a multi billion dollar industry that provides 
thousands of American jobs and often results in reduced waste 
disposal and net carbon emissions.
    I am eager to hear their testimony today and the testimony 
from the EPA witness, Lisa Feldt, who will hopefully be able to 
shed additional light on this subject.
    I want to thank all the witnesses for being here today.
    And I now yield to the ranking member, Mr. Luetkemeyer, for 
his opening statement.
    Mr. Luetkemeyer. Thank you, Mr. Chairman, for holding the 
hearing on this very important topic, one that I know is 
particularly pressing for many small businesses in both of our 
districts and all throughout the country.
    The Environmental Protection Agency will soon make a 
decision on how to regulate coal combustion byproducts, CCBs. 
EPA offered two regulatory options for classification of CCBs 
under the Resource Conservation and Recovery Act. It is my 
belief that classification as a hazardous waste under Subtitle 
C will be a disaster to the small businesses that recycle CCBs.
    Some CCBs have industrial uses, while others are 
essentially waste byproducts. One of the most useful CCBs is 
coal fly ash, which is a fine, powdery CCB produced by coal-
fired electricity generators. Coal fly ash is incorporated in 
concrete.
    Montana's Hungry Horse Dam, completed in 1953, was one of 
the first applications in which fly ash was used. Since then, 
at least 100 major locks and dams using fly ash have been 
constructed under the direction of the U.S. Army Corps of 
Engineers, the U.S. Bureau of Reclamation or private 
engineering firms.
    In light of the CCB spill disaster at the Tennessee Valley 
Authority's Kingston facility, I understand EPA's raising 
concerns about the handling and storage of CCBs. We all want 
appropriate precautions to be taken and for the public health 
and welfare to be protected. However, slapping a hazardous 
label on fly ash and other CCBs without sound scientific 
evidence almost surely will eliminate their ability to be used 
in a beneficial manner by industry. Such a designation will 
also impose severe financial hardship on an industry dominated 
by small businesses employing tens of thousands of people 
throughout the United States, including my home State of 
Missouri.
    According to EPA's own analysis, approximately 13.4 tons of 
coal ash are used in concrete or cement production annually. 
EPA maintains that the regulation of these uses will not be 
changed, so the agency did not examine what effects would 
result on the recyclers because of the proposed rule. But the 
hazardous designation could kill ash recycling enterprises that 
generate $5 billion to $10 billion a year in revenue for coal-
burning utilities. In addition to the revenue lost, generators 
of CCBs will have to find a place for 60 million tons that now 
fill abandoned mines, incorporate into concrete or shore up 
eroding highway embankments.
    Should EPA decide a hazardous waste management regime is 
necessary, the CCBs would quickly overwhelm the capacity of 
currently available hazardous waste landfills. A hazardous 
designation would raise the cost of coal ash disposal from $5 
or $10 a ton to $150 a ton, a total of $10 billion to $15 
billion more per year.
    Nor would that situation be helped by the recycling of 
CCBs. To the extent that regulations, especially under Subtitle 
C, impose additional costs to generators, they will pass those 
costs on to the beneficial reusers of CCBs. Increased 
regulation of CCBs would force recyclers to pass increased 
costs on to consumers, reduce prices to meet those of lower 
cost suppliers, or abandon the use of CCBs altogether. A 
rational producer will ultimately select the third option in an 
effort to ensure that its competitive position in the 
marketplace is not damaged. This only will increase pressure on 
landfills or surface impoundment storage of this waste.
    During the past 20 years, the EPA has considered whether to 
determine that CCBs should be hazardous waste, and each time 
they have found they should not. Nothing in the physical or 
chemical characteristics of these products has changed. What 
has changed is the fact that surface impoundments regulated 
under the Clean Water Act containing CCBs failed. That 
regulatory failure should not result in the regulation of CCBs 
as hazardous waste.
    It is my belief that the designation of fly ash as a 
hazardous waste is counter to the goal of sustainability or 
even good for the environment. CCBs increase the durability of 
the Nation's infrastructure, thereby requiring less 
reconstruction and associated runoff of pollutants from 
construction sites. Fly ash is commonly accepted and used 
worldwide, and its use is a key strategy to sustainable 
construction, reducing hazardous waste disposal needs and 
limiting creation of greenhouse gasses. CCBs increase the 
durability of the Nation's transportation infrastructure and 
double its useful life. The EPA has not considered any of this 
in its propped rule.
    If EPA continues down this path and resists the call from 
121 Members of Congress to abandon its preferred course of 
action--designating CCBs as hazardous waste--I believe that 
there will be sufficient bipartisan support to take legislative 
action to address EPA's regulatory overreach.
    Again, thank you, Mr. Chairman, for holding this hearing. I 
look forward to hearing from the witnesses examining possible 
solutions.
    With that, I yield back.
    Chairman Shuler. I would like to thank the ranking member 
for his opening remarks.
    And now I would like to recognize Mr. Bright from the great 
State of Alabama.
    Mr. Bright. Thank you, Mr. Chairman. It is great to be 
here. Very quick opening statement, and I am really looking 
forward to the testimony today. But I do want to thank you and 
the ranking member for holding this very important hearing. And 
I do consider it an extremely important hearing for my State 
and the people that I represent.
    As many of you know, coal combustion waste recycling 
generates an estimated $5 billion to $10 billion dollars in 
revenues for entities which produce CCW nationwide. Thousands 
of small businesses benefit from the beneficial use of CCW, 
which creates jobs and provides economic growth at a much-
needed time in our history.
    In my home State of Alabama, the combination of ready-
mixed, asphalt, and raw cement integrates around 450,000 tons 
of coal ash use in a slow year; it would be up to around 
600,000 tons in a good market.
    With that said, this issue is important to me and many 
other districts throughout our great country, and I hope to 
learn more today about what we can do to protect the beneficial 
usage of coal ash.
    I want to thank our witnesses today. I am looking forward 
to your testimony. And I really appreciate your agreeing to 
come here and testify before this panel.
    And I really do look forward to your testimony and also our 
panel two testimony a little later today.
    So thank you very much, Mr. Chairman. I return it back to 
you.
    Chairman Shuler. I thank the gentleman from Alabama.
    Our first witness is Ms. Lisa Feldt. Ms. Feldt is a deputy 
assistant administrator of solid waste and emergency response 
in the U.S. Environmental Protection Agency.
    This office develops guidelines for the land disposal of 
hazardous waste and underground storage tanks.
    Mrs. Feldt, you will be recognized for 5 minutes.

STATEMENT OF LISA FELDT, DEPUTY ASSISTANT ADMINISTRATOR, OFFICE 
   OF SOLID WASTE AND EMERGENCY RESPONSE, U.S. ENVIRONMENTAL 
                       PROTECTION AGENCY

    Ms. Feldt. Thank you, Mr. Chairman and members of the 
subcommittee. As you indicated, my names Lisa Feldt. I am the 
deputy assistant administrator for the U.S. Environmental 
Protection Agency's Office of Solid Waste and Emergency 
Response. Thank you for the opportunity to testify today on 
EPA's coal combustion residuals--I will try to stay away from 
the acronyms--regulatory development activities. I will 
summarize my testimony, but I ask that my entire written 
statement be submitted for the record.
    Let me start by saying that we understand there are 
differences of opinion regarding how to regulate coal 
combustion residuals, or CCRs, as we commonly refer to them.
    I can assure you that we want to strike the right balance. 
We want to get this right. We must base our decisions and 
foundation in the law and the science. We must provide 
protection to human health and the environment in a way that 
also takes into account the significant environmental and 
economic benefits of beneficial use of CCRs, or coal combustion 
residuals.
    EPA Administrator Lisa Jackson has indicated her support 
for continued safe beneficial use as we evaluate CCR regulatory 
options for safely managing the disposal of the coal combustion 
residuals in our rulemaking effort. We seek a national dialogue 
on EPA's proposal for addressing the risk, as we do in all our 
rulemaking efforts, for addressing the risk of managing CCRs 
under the Resource Conservation and Recovery Act.
    During the development of our proposal, administrator 
Jackson and Assistant Administrator for Solid Waste Emergency 
Response Mathy Stanislaus met with representatives from States, 
from businesses, including those who beneficially use CCRs and 
are on your next--some of them on your next panel, and many 
environmental groups, as well as local communities.
    Including in a good faith effort to help get the data and 
information needed to strike the right balance in our 
rulemaking effort, we want to ensure that our ultimate 
decision--and let me say our ultimate decision, we have made no 
decision yet--is made based on the best available science and 
data and is taken with the fullest possible extent of public 
input.
    While our efforts are underway, I am mindful of the 
importance of allowing the rulemaking process to run its 
course, of waiting for the expected wide range of public 
comments and not appear to prejudging the issues associated 
with this complex rulemaking. Therefore, I may not be able to 
answer all the questions you have to me so that we allow that 
process to continue.
    Regarding EPA's proposal, we have two alternative 
regulatory options and are currently taking comments on a wide 
cross section of issues. I would like to stress that under both 
regulatory approaches proposed by EPA, the agency would leave 
in place the current exemption for beneficial use of CCRs and 
thus would not alter the regulatory status of CCRs that are 
beneficially used. Large quantities of CCRs are beneficially 
used today in concrete, cement wallboard, and other contained 
applications that EPA believes would not involve exposure to 
the public to unsafe contaminants. Responsible environmentally 
sound beneficial uses of CCR conserve resources, reduce 
greenhouse gas emissions, lessen the need for waste disposal 
units and provide significant domestic economic benefits.
    We are seeking comment in the rule on all forms of 
beneficial use, as we have heard many different viewpoints. We 
remain committed to encouraging environmentally sound 
beneficial use of coal combustion residuals.
    CCRs that are disposed of, though, are one of the largest 
waste streams generated in the United States. CCRs contain 
constituents, such as arsenic, cadmium and mercury, which can 
pose threats to public health and the environment if improperly 
managed and disposed. Thus proper management of these waste 
streams--not the beneficial use of CCRs, but the waste streams 
that are disposed of--is essential to protecting public health 
and the environment.
    Prior to our recent regulatory proposal, EPA, as has been 
acknowledged here, has had a long history of regulatory efforts 
regarding CCRs. In May of 2000, EPA issued its regulatory 
determination that CCRs did not warrant regulation as a 
hazardous waste under Subtitle C of RCRA. EPA also concluded at 
that time that Federal regulations of a nonhazardous waste 
under Subtitle D of RCRA was appropriate. With respect to 
beneficial uses, EPA determined that the beneficial use of CCRs 
did not pose a risk that required Federal regulation.
    Since EPA's May 2000 determination, we have continued to 
gather additional information that supports the need for 
regulation of CCR disposal. The catastrophic failure of the 
Tennessee Valley Authority surface impoundment retaining wall 
in Kingston Tennessee in December 2008 and the release of more 
than 5 million cubic yards of coal ash into Emory and Clinch 
Rivers and surrounding areas has highlighted this issue for all 
of us.
    EPA determined that regulatory efforts had to be designed 
to also prevent future catastrophic releases as well as 
preventing other types of environmental damage associated with 
the disposal of CCRs in landfill and surface impoundments.
    As I mentioned before, EPA's proposal, issued on June 21st 
of this year, includes two options. One alternative would list 
CCR when destined for disposal in landfill or surface 
impoundments as special waste subject to regulation under 
Subtitle C of RCRA, which would create a comprehensive program 
of federally enforceable regulations.
    Under the second alternative, EPA would regulate the 
disposal of CCR under Subtitle D of RCRA as a solid waste by 
issuing national minimum criteria and would be enforced through 
citizen suits or by the States.
    One of the issues that commenters have raised to EPA is 
that any regulation of CCRs under Subtitle C of RCRA will 
impose a stigma on their beneficial use and thus significantly 
curtail these beneficial uses. EPA has questions regarding this 
assertion and stated in the preamble to the proposed rule that 
if Subtitle C of RCRA was selected as the regulatory option, 
the management and disposal of CCRs would become more expensive 
and thus beneficially using CCRs would become attractive 
economically.
    Past experience with other waste regulated under RCRA 
Subtitle C suggests the increased cost of disposal as a result 
of Subtitle C regulations would create a strong economic 
incentive for increased beneficial use.
    However because this issue has been raised and because EPA 
strongly supports the environmental sound beneficial use of 
CCRs, EPA is seeking comment and data on this issue.
    In closing, I want to assure the members of the 
subcommittee and all of the witnesses appearing here today that 
EPA takes the concerns raised about the risk to human health 
and the environment; the potential impact on businesses large 
and small; on beneficial use; and a host of other issues 
regarding our CCR proposal.
    Thank you, Mr. Chairman. That concludes my prepared 
remarks. I will be pleased to answer any questions you or the 
subcommittee members have.
    [The statement of Ms. Feldt is included in the appendix.]
    Chairman Shuler. Thank you, Mrs. Feldt, for your remarks.
    Obviously, one of the most important things from this 
subcommittee is the impact on small businesses.
    And I have a letter here that is from the American Coal Ash 
Association asking the Administrator Jackson to do a formal 
review of potential impacts on the ruling of small businesses 
that recycle coal ash has.
    I have another letter here from the EPA denying that 
request.
    Did the EPA ever survey whether the small businesses in the 
recycling industry would be harmed by Subtitle C designation of 
coal ash?
    Ms. Feldt. Yes. We did a small business analysis for the 
entities that we were preparing to regulate, which was the 
small power companies. We did an evaluation of the small 
business impact to the industry that we were proposing to 
regulate under either option Subtitle C and Subtitle D.
    We conducted extensive economic analysis in those areas to 
support the proposed rule. EPA analyzed the direct impacts on 
small facilities that are subject to the rule, the small power 
plants, 26 percent, and found no significant economic impact on 
a substantial number of small entities.
    Since we are not regulating beneficial use under this rule, 
consistence with agency guidance, these facilities were not 
included in our small business analysis.
    We welcome through this rulemaking process any costs of 
impact data and recommend that it be submitted during the 
comment period and for the record.
    Chairman Shuler. Thank you.
    So from the small, the recyclers, there was no nothing, no 
survey done when it comes to the recyclers.
    Ms. Feldt. Again, we, the beneficial use of CCRs was exempt 
and remains exempt under either proposal, so we did not do a 
specific analysis on the recyclers.
    As I mentioned, we met with many of the recycling community 
and trade associations, including the American Coal Ash 
Association, and continue to receive their input and look for 
any specific comments and impacts through this rulemaking 
process.
    Chairman Shuler. Executive Order 12866 says that this 
analysis should include an assessment of all costs and 
benefits, including indirect cost. Why didn't the EPA use this 
ruling for more indirect recyclers to use this ruling under the 
executive order?
    Ms. Feldt. EPA conducted under the Executive Order, which 
is on regulatory impacts, significant analysis on the proposed 
rule. This included the estimation of direct cost to the 
utilities, ancillary costs to government, groundwater 
protection benefits to the public, avoided structural failure 
benefits to the public, the indirect effects on beneficial use, 
the indirect effects on electricity prices and distributional 
effects on several groups, including small businesses, 
minorities and low-income populations.
    There were several effects that EPA could not quantify for 
this analysis. For instance, EPA did not quantify the 
ecological benefits of this rule. Even for those effects, EPA 
discussed the issues qualitatively.
    To the extent that EPA did not evaluate any direct or 
indirect effects or was unable to quantify the effects for the 
proposed rule, we would welcome, again through the comment 
process and the rulemaking, for the record submission of any 
additional information or data to help us as we develop the 
final rule.
    Chairman Shuler. But that is allowing the industry to 
respond, which is great, and I think the industry will respond.
    But what about the actual, the working of the EPA? I mean, 
it is part of the responsibility of EPA to go and look at this 
indirect. It says all, and I have it capitalized here. And I 
don't know, it is probably not capitalized and underlined 
within the regs, but this is the impact of the recyclers. I 
mean, this is the small businesses.
    And the reason I ask this so much is because you have two 
proposals, one under C and one under D, and they are quite 
broad, from one extreme to the other, very loose regulations to 
no to little regulations from the Federal Government, and very 
stringent regulations and almost to the point that its still 
under Subtitle C; that means that special waste is still going 
to be considered a hazardous waste. But I don't know about you, 
but if it is considered hazardous waste and it is under 
Subtitle C, then that to me is, that will have a huge exact 
impact on the small businesses.
    So you have two proposals that are, in my estimation and 
others, is on opposite ends of the spectrum. And so often we 
need to come to that common ground. Hopefully that is where we 
can get to today, is to come to that common ground. But I think 
it would really be helpful if the EPA would conduct that 
indirect cost to the recyclers, indirect impact to the 
recyclers going forward.
    Is that something that could be done during this period of 
time, or is it already passed that during the public opinion 
that it can't be addressed?
    Ms. Feldt. Again, we excluded beneficial use from the 
regulation under either C or D.
    We did look at indirect effects on the beneficial reuse 
from a bounding perspective, and I can get you some additional 
information that we looked at from that perspective.
    But certainly any comments that are submitted, either via 
this committee or through public comment process, we will look 
at and analyze in our final decision.
    Chairman Shuler. In the recycling process, especially in 
concrete, a huge amount, and I think the gentleman from Alabama 
and the ranking member also alluded to it, a huge amount of the 
coal ash is used in recycling back into cement and concrete.
    Was the, during this process in conducting the regulation, 
the proposals that you have, was carbon emissions ever a part 
of how much savings and lowering emissions based upon using 
this as a recycled product? And what is the--because it costs a 
lot of--there is a lot of carbon produced and energy consumed 
based upon the production of concrete and cement. And so was 
that ever taken into consideration during the process?
    Ms. Feldt. Yes, we looked at, in our benefits analysis, we 
looked at both the carbon footprint reduction as well as the 
disposal capacity, energy usage; all those factors we looked at 
in our beneficial analysis. And those discussions are found in 
the proposal.
    Chairman Shuler. Why do you feel that there is so much 
discrepancy between the two proposals? I may be naive, but to 
me, it looks like it is pretty broad within the two proposals.
    Ms. Feldt. Yes. The C proposal basically provides Federal 
regulation with specific Federal enforceability.
    The prime differences of the D regulation is the Federal 
enforceability aspect.
    But we want to consider comments on both. And both of them 
will require liners. Both of them require groundwater 
monitoring. Both of them require some form of corrective action 
in setting either a C or D proposal.
    It is really the enforceability issue, which is one of the 
key concerns for--but why we want to gather comment on both 
options. So, again, for the record, during this national 
dialogue and national review of the rule, we request all 
interested parties to submit their comments on either the D or 
the C and what their perspectives are and what the data is to 
support either C or D. The agency has not taken a position one 
way or the other on that.
    Chairman Shuler. Under Subtitle D, does the EPA have 
authority and direct regulations to regulate the CCB disposals?
    Ms. Feldt. As I mentioned, we have, in the rule itself, we 
have extensive discussion on the differences and concerns 
raised between regulation under Subtitle D.
    Under Subtitle C it is a full cradle-to-grave management 
process.
    You know the prime issue is the enforceability. The 
Subtitle D is enforced either through citizen suits or by the 
States that promulgate Subtitle D regulations.
    Chairman Shuler. I went to the TVA site in Kingston, and I 
certainly saw the amount of devastation--is probably the best 
words to use--most of that problem obviously was how they, it 
was almost like stacking jello. It was so wet when they were 
disposing of it into the sites, that it was like stacking 
jello. And at a certain point, when the stack gets so high, 
something has to fall.
    So I certainly saw the devastation and the environmental 
impact it is going to have for not just a couple years but 
probably very, very long term to be able to see the impact.
    Hopefully we will get a chance to ask some more questions, 
but at this point in time, I will yield to the ranking member, 
Mr. Luetkemeyer for his questions.
    Ms. Feldt. Thank you.
    Mr. Luetkemeyer. Thank you, Mr. Chairman.
    Mr. Chairman was very thorough in his discussion here. Let 
me just follow up on a couple of things.
    My concern is that we are trying to regulate something that 
back in 2000 EPA found that there was no problem for, so that 
we reached the decision that it is not warranted to regulate. 
And as a result, there was no risk to human health or the 
environment. There were no cases of damage to human health or 
the environment that has been identified.
    Now we are looking at doing that. And what has changed?
    Ms. Feldt. Let me just be clear. Our 2000 regulatory 
determination did propose regulation under Subtitle D as a 
solid waste. Since that time, we have gathered new information. 
We have damage cases that are part and parcel and discussed in 
the rule, and we can provide for the record that talk about 
the, not only the catastrophic failure that happened at 
Kingston--
    Mr. Luetkemeyer. Wait, wait, wait. That is an impoundment 
problem. That is not a problem with the product itself.
    Ms. Feldt. No, and I was going to continue on, thank you.
    But Kingston was the catastrophic failure due to the 
stability of the dam.
    But we also have damage cases that talk about arsenic and 
mercury and selenium migration to groundwater and to surface 
water that potentially affect drinking water sources. And all 
those damage cases are identified in the rule itself.
    So, in 2000, we did not have that information. We continued 
to gather that information. Between 2000 and now, Kingston also 
happened, so we have looked at all the additional information 
that we have to support either a D or a C option. But, in May 
2000, we did determine that it was--regulation under D was 
appropriate as a solid waste.
    Mr. Luetkemeyer. So, basically, you are saying that the 
problem is impoundment; it is not the product itself, because, 
look, if you have, we got a situation in my home State where we 
had a large water reservoir on top of a mountain. The reservoir 
broke. All the water ran down the mountain, flooded the stream. 
There was a massive flood. It washed everything along the way. 
That is a catastrophic event, as well. That was due to water. 
You can have this with anything. You can put salt into an 
impound area and have a dam break and go done the stream. That 
will destroy the area as well. I think it is an impoundment 
problem here that is the problem. You haven't told me yet where 
the problem is with the product.
    Ms. Feldt. The problem with the product, and again, the 
damage cases that we have that we can submit for the record 
talk about leaching of the contaminants that are in the coal--
    Mr. Luetkemeyer. We are leaching, those are from an 
impoundment area.
    Ms. Feldt. That are unlined, that are not lined, that do 
not have--many of them do not have liners--some of them do--
that are not lined, that we have damage cases that show that 
those contaminants, arsenic, mercury, selenium, leach into the 
groundwater from these unlined units.
    Mr. Luetkemeyer. Again, it is an impoundment problem.
    Ms. Feldt. It is an impoundment and landfill. And what we 
are proposing in the C or D proposal is to regulate the 
impoundments or landfills that, in many cases, are unlined.
    Mr. Luetkemeyer. So what we have identified then is that 
there is an impoundment problem that we are trying to work with 
here. We need to find a way to make sure that we contain what 
is there. The product as it is used now in all the other uses 
you have not found a problem with that?
    Ms. Feldt. Right. What we are regulating--
    Mr. Luetkemeyer. You said yes?
    Ms. Feldt. Yes--is the disposal and management from the 
impoundments and landfills themselves, which result--has 
resulted in catastrophic failures, in some instances, in 
migration of contaminants to groundwater and surface water. So 
that is what we are proposing to regulate under the D or C; not 
the safe and environmentally sound beneficial use of coal 
combustion residuals.
    Mr. Luetkemeyer. So what we need to focus on here is, how 
do we dispose of it once it is sitting in an impound area, is 
that correct?
    Ms. Feldt. Yes.
    Once it is in the impound area, it is considered disposal. 
In the impoundment or the landfill itself, that is disposed 
coal combustion residuals.
    Mr. Luetkemeyer. But at this point, you haven't found a 
problem with its use in concrete or any other uses of the ash 
itself?
    Ms. Feldt. No, not at this point.
    In fact, what we call capsulated, encapsulated uses, and we 
again talk about this in the rule, those products are exempt 
from this rulemaking effort.
    We are not proposing to regulate those under C or D. And we 
believe that fly ash and concrete, wallboard, et cetera, those 
are all considered capsulated uses and should continue. And the 
administration and Administrator Jackson supports the continued 
beneficial reuse of those products, and they would not be 
regulated under either the C or D option.
    Mr. Luetkemeyer. I think that is a key point of the hearing 
here as well, because I think we want to make sure that we 
don't describe this as a hazardous material that has been found 
and used for over 50 years. In my testimony here, we had one 
example back in 1953, and we haven't had any negative impact 
from the usage of this material at this point. And there are 
other uses being developed as we speak.
    So as long as it is used, the product is encapsulated, as 
you say, we don't have a problem.
    The problem is with the impoundment of it and how it is 
stored, and therefore, it can, if it is not stored correctly be 
a problem. That is where we need to focus. Is that the gist of 
your testimony there?
    Ms. Feldt. Yes, that is correct.
    Mr. Luetkemeyer. One of the things that is concerning me 
also is during your determination of the costs of it, by 
raising, by looking at the impact of what your rules may do to 
the costs, say that the costs incurred by electricity 
generators would succeed in passing on all those costs to the 
customers, and therefore, its impact would be insignificant.
    That to me is a very laissez-faire approach to what is 
obviously a huge impact to the customers. It is just another 
way of putting more cost burden on the individuals and 
businesses who utilize, and everybody does, electricity.
    So I am a little, I guess, frustrated by the fact that the 
cost was looked at, and you say, well, because it is going to 
be passed on, it is not going to be significant. I am a little 
miffed at how they can come up with that as not being 
significant.
    Ms. Feldt. Let me, we have developed costs for each of the 
options in terms of costs and the benefits. We did do in our 
regulatory impact analysis for the proposed rule, we factored 
in that the national electricity prices averaged 8.84 cents per 
kilowatt hour.
    Assuming that 100 percent of the cost of the proposed rule 
would be passed on to the electric consumers, the regulatory 
impact analysis estimated that the average nationwide increase 
would be approximately .8 percent with local markets increasing 
anywhere from zero to 6 percent. And we can provide more 
information.
    But that was assuming that 100 percent would be passed on 
to the customers, and we, that was the analysis that we had, 
and we can provide more information.
    Mr. Luetkemeyer. So you are going to raise somebody's 
electric bill 6 percent? Is that what you just said?
    Ms. Feldt. No. We did the analysis. That is the analysis. 
Again, we have not made a decision on either C or D in terms of 
the proposal. We are still evaluating all options.
    Mr. Luetkemeyer. But you said it is going to raise the 
individual 6 percent?
    Ms. Feldt. We are required as part of the rulemaking to do 
a regulatory impact analysis on the cost, and that was part of 
our analysis that we looked on. And I am not making a statement 
that we are raising the consumer rates by 6 percent. That was 
the bounding case of our analysis.
    Mr. Luetkemeyer. But you don't think that is significant?
    Ms. Feldt. I am not, I am not prepared to say whether it is 
significant or insignificant. That was the bounding cost of our 
analysis.
    Mr. Luetkemeyer. We have a lot of customers in here, I am 
sure, that think that would be pretty significant to raise it 6 
percent. And I think there would be a lot of business folks--we 
are a small businesses committee--if their utility bill were 
raised 6 percent, that would be pretty significant. I have a 
family in my district that if it raised 6 percent, they are out 
of business, quite frankly.
    Ms. Feldt. Again, we have not made a decision the C or D, 
and that was the bounding scenario that we looked at and are 
required to look at in our regulatory impact analysis, but we 
welcome any comment on that.
    Mr. Luetkemeyer. Thank you, Mr. Chairman. I will stop right 
there.
    Chairman Shuler. I would like to thank the ranking member.
    At this time, I will yield to Mr. Bright from Alabama.
    Mr. Bright. Thank you, Mr. Chairman.
    Ms. Feldt, thank you for your testimony today. As I said 
earlier, and that does concern me, a 6 percent increase. That 
could be a significant factor for some of the small businesses 
in my community. And I would like to get more information about 
that as you obtain it if you could supplement your statement 
here.
    Ms. Feldt. Sure.
    Mr. Bright. The other factor, and I think the chairman and 
ranking member pretty much covered most of my concerns here but 
one, and that is, EPA has a real, very difficult balancing act 
here to protect the public, protect our environment, and also 
at the same time understand what affect you may have on the 
businesses out there who will be affected. And that is a major 
concern, and I appreciate that balancing act that you have to 
conduct every day.
    However, with that said, did EPA consider the potential 
affect and possibly negative affect it would have on the 
industry by designating CCB as a hazardous material?
    Ms. Feldt. We heard from many of the groups that you will 
be hearing from later on as well as different industry 
representatives and communities that we met with on the stigma 
of that designation.
    Mr. Bright. You heard from them, but did you make a study 
or have they conducted a study of some type to see definitely 
what affect it would have on the industry out there?
    Ms. Feldt. We do not have any specific information that 
suggests--our position, as I stated in my testimony, is that 
beneficial use will actually increase with the designation 
under either C or D because of the economics.
    So we did not have any information that supports the stigma 
argument. We request in the proposal itself, request for 
comments on information and data that supports the stigma, and 
clearly, we will evaluate that as we make your final decision.
    Mr. Bright. Was there any study done or evaluation or 
assessment done by EPA on the encapsulated use of CCBs, in 
other words, even though you have clearly stated here today, 
and I am somewhat intrigued with your statement, you have no 
intention or this regulation has no intention of regulating 
useful or beneficial use of CCBs, is there any study out there 
that you know of or are aware of that there is a hazard to the 
public, to the general public, of encapsulated CCBs and 
beneficial use?
    Ms. Feldt. From what we have seen to date, encapsulated 
beneficial use, we have not seen any impact to the environment 
from that.
    We did receive a lot of input and comments, and we are 
requesting comments. We have stated that we believe capsulated 
beneficial use is completely protective of the environment, but 
we are seeking comment on all beneficial use, and specifically 
unencapsulated use, which in many cases also are very 
legitimate beneficial reuse and safe for the environment. But 
we are seeking comment in the proposal.
    Mr. Bright. So would it be fair to say that you are 
continuing an ongoing assessment or study of potential 
hazardous use of encapsulated CCBs? Is that fair?
    Ms. Feldt. None of the analysis that we have done to date 
has shown any environmental harm from encapsulated use. If we 
get comment and data during this process from the full set of 
the public that is engaged on this, we will clearly evaluate 
that.
    Mr. Bright. Thank you very much for your testimony.
    And Mr. Chairman, I will yield back the remainder of my 
time.
    Chairman Shuler. I thank the gentleman.
    I want to recognize Mr. Thompson from Pennsylvania for his 
5 minutes for questions.
    Mr. Thompson. Thank you, Mr. Chairman, Ranking Member, I 
appreciate this hearing.
    Thank you, Ms. Feldt, for your testimony.
    Two clarifications and then a possible solution I want to 
throw out there and get your opinion on, change gears a little 
bit. But the first clarification is from my last two colleagues 
that talked, you talked about electricity cost analysis and 
that your analysis up to this point has 6 percent, potential 6 
percent rate increase.
    Did that analysis also include the other realities that 
maybe aren't in place right now, but I think are, frankly, I 
think are threatening to drive up the cost, the cap-and-trade, 
some of the other related and unrelated EPA regulatory 
initiatives that are kind of outside of--that are occurring 
administratively that would push up the cost of fossil fuels? 
Deregulation in States like Pennsylvania, which right now, we 
are seeing a--I think we are going to see a huge jump in 
electricity costs. It is not in place now, but it would be at 
the time of whatever implementation as you make a decision. Or 
just the energy mix, I mean, States like Pennsylvania, we are 
blessed with over 60 percent of our electricity comes from 
coal, which is the most affordable and reliable. Were any of 
those factors which are--that last one is just a characteristic 
of Pennsylvania, but the other three, that are not in place 
now, but frankly, there is a real threat--I consider it a 
threat--will be in place at the time that the EPA would 
implement this; was that considered in this cost analysis?
    Ms. Feldt. I will need to get back to you and submit that 
information for the record.
    I believe that these costs reflect the impact of our rule. 
But I will need to double check that and get back to the record 
for that.
    Mr. Thompson. Because those things are looming there.
    The other thing is, even if it is just 6 percent--and I 
would argue it is probably going to be much higher given what I 
just described of things that I think are, unfortunately, a 
looming threat to cost of electricity, especially in States 
like Pennsylvania, which we rely on coal, we value it--wouldn't 
this, the byproducts that we are talking about today, the 
subject of this, when they are able to sell those for very 
qualified, wonderful uses to be able to take that fly ash and 
use it to build things, or to use it in different ways, that 
has got to drive up the cost of those. Those generators of 
electricity, who will produce that byproduct, they are going to 
absorb these new costs; any business model would tell you that 
if their costs go up, they have to raise the cost of what they 
sell these byproducts for. Would you agree with that?
    Ms. Feldt. I am not prepared to agree or disagree with 
that. I think what--we did not in this proposal regulate the 
beneficial use.
    Clearly, our analysis shows that we don't have any 
information that supports a stigma argument for beneficial use, 
but we have requested comment, information and data to support 
that argument, and clearly we will evaluate that in our final 
analysis and decision.
    Mr. Thompson. Great. I think it is a reality, so I hope 
those who are, obviously, in that business, who would have 
those business models, would come forth with that type. I think 
it would be helpful for you to have that.
    I promised you a potential solution. You had acknowledged 
earlier that what we have is an impoundment issue, and so I 
just want to throw this out there and get your opinion on this. 
As I have looked at this, one of the things I have seen out 
there are things that deal with geosynthetics as a class of 
product that provides solutions for safe storage of coal 
combustion residuals until they are reused. And geosynthetic 
materials include liners, such as geomembranes, geosynthetic 
clay liners, structural reinforcement using geotextiles, geo 
grids, drainage applications using geo composite drains. Safety 
concerns regarding coal combustion residuals can be mitigated 
if storage sites are lined and the leach agent is prevented 
from entering the environment. You talked about that when we 
acknowledged that this was an impoundment issue. The geo 
composite draining systems draw the water out of the coal 
combustion residual slurry in the surface impoundment, 
rendering the material into a more solid and stable state.
    Now applying these geosynthetic solutions to the storage of 
coal combustion residuals, keeping them in a safe secure state 
until the materials can be recycled in the production of 
cement, wallboard, all the structural road base, all the things 
we have talked about that has been mentioned and many more, so 
since the future of coal combustion residual beneficial use 
industries and their employees are dependent upon safe secure 
handling and storage of material and since the geosynthetics 
provide for safe secure storage, do you support congressional 
action to direct the use of these geosynthetic systems or 
through action by the EPA to encourage use of these materials 
in regards to containment?
    Ms. Feldt. I certainly appreciate your suggestion, and 
under either proposal, again, the impoundments that we are 
regulating are impoundments that are used for disposable, not 
beneficial use. And we are proposing geoliners in either 
proposal. So I appreciate your comments. And that is how I will 
answer your question.
    Mr. Thompson. I appreciate it. And I look forward to you 
getting back to me in terms of those other factors--
    Ms. Feldt. Will do.
    Mr. Thompson. Regarding electricity analysis.
    Ms. Feldt. Will do. Thank you.
    Chairman Shuler. I thank the gentleman.
    At this point in time I would like to recognize the 
gentlewoman from Pennsylvania, another Pennsylvanian here, 
Kathy Dahlkemper for 5 minutes.
    Mrs. Dahlkemper. Thank you Mr. Chairman.
    Many of the questions and concerns that I had wanted to 
bring up have already been addressed.
    But I just have one question for you, Ms. Feldt. Would it 
make sense for Congress to give the EPA the authority to 
regulate under Subtitle D and create new disposal national 
standards that can be enforced at the same time avoiding that 
stigma of hazardous or special waste?
    Ms. Feldt. We have currently proposed two options in our 
rulemaking effort, and we are considering both options. 
Clearly, we would provide any technical support necessary, but 
we have not decided on any, either of those options right now.
    Mrs. Dahlkemper. So, at this point, just waiting for 
comment through the rules process?
    Ms. Feldt. Correct.
    Mrs. Dahlkemper. As I mentioned, Mr. Chairman, most of my 
questions have been addressed.
    Obviously, we are all very concerned about, my colleague 
from Pennsylvania has already mentioned the increased cost that 
Pennsylvanians are going to be incurring in utilities, and 
obviously, we are all very concerned about that for our 
businesses, for our individuals, and I certainly hope that 
you--I would also be interested in some of the information on 
how that came about. So I would appreciate if you could pass 
that on to me.
    Ms. Feldt. We will make sure to submit that for the record.
    Mrs. Dahlkemper. Thank you very much, Mr. Chairman.
    I have to yield back. I have to get to a markup in another 
committee so thank you.
    Chairman Shuler. Thank you.
    For the record, when you say you are getting back to us, 
can we get that back in 7 business days?
    Ms. Feldt. We will be glad to provide that.
    Chairman Shuler. Thank you.
    Any other member have any other questions they would like 
to?
    I just had a couple more that I would like to state. EPA 
says that if it is under Subtitle C regulations, that it will 
encourage recycling of coal ash? I don't understand how it is 
going to encourage recycling. I know EPA says it is because the 
disposal is going to be more expensive, so it is going to 
encourage people. But if it is put under C, then it is going to 
be looked at as a hazardous waste. And I just don't understand 
how more people are going to recycle it if it is listed under 
C, just because the disposal cost is going to increase from up 
to zero to 6 percent increase.
    Ms. Feldt. We are requesting comment on the stigma argument 
and the real data as I indicated before. In the preamble to the 
proposal, EPA lists several examples which illustrate that 
hazardous waste or other materials subject to RCRA Subtitle C 
are used and recycled. These examples suggest that hazardous 
waste label does not impose a significant barrier to beneficial 
use. They include things like electric arc furnace dust, which 
is a listed hazardous waste; electroplating wastewater sludge, 
which is a listed hazardous waste; used oil that is regulated 
under RCRA Subtitle C standards. So we have actually seen the 
reverse trend to the stigma argument.
    But, again, we are asking for data and information from all 
the stakeholders and the industries to comment on the stigma 
argument. But we have seen in other cases the reverse, where 
recycling rates have actually increased because of the 
increased disposal cost and the economic aspect of that.
    Chairman Shuler. Well, thank you.
    And I want to thank the EPA and the staff for the work that 
they have done on this. I think there is still a lot of work to 
be done. And I think, as always, a compromise is much, much 
better.
    And for the recyclers, those people who are lowering the 
emissions, making better use of a product, making sure that, if 
we can utilize it in areas, that we don't have to stack it on 
top of one another like happened in Kingston, Tennessee, that 
we can make a better use of that and utilization of the fly ash 
that will give us an opportunity for small businesses to 
continue to grow and not restrict those jobs. But I think we 
really got to come to a compromise.
    And I think, from this entire panel, and this is a very 
unusual--but the way Congress should be working and in a very 
bipartisan way. I mean, I think you have seen across the board 
here that we are in agreement that putting it in under Subtitle 
C may create, which has been indicated to us through multiple 
letters that we have received that says that the impact, the 
stigma under Subtitle C would have a devastating impact to 
small businesses.
    So we are really hoping that we can bring this back to the 
middle. We certainly all agree, I think, amongst us that the 
disposal part is the real issue here, where it is being 
disposed onsite, and having the geosynthetics and making sure 
that we can have a proper way to monitor and to regulate that 
in those site areas is the real issue.
    And sometimes in Washington, we get all caught up in 
things, and we forget about the small businesses. But this 
committee never forgets about small businesses. And it is 
across the board that we want to make sure that they are taken 
care of and it doesn't have such a huge impact on them, because 
some of them are mom-and-pop operations that have been in 
business for a very long time, conducted themselves in the 
appropriate manner, and look at the positive things that we are 
gaining from it, lowering our carbon footprint, lowering 
emissions.
    So, I will really want us to be able to work together, and 
I am hoping that through this committee and the others with 
jurisdiction, that we can have some good dialogue with the EPA 
and, obviously, the input from the community. And I know that 
that is what you are waiting for.
    And for the record, it is kind of a housekeeping, for the 
record, someone will be staying from the EPA to listen to our 
next panel, because that is real important. That is one of the 
most important things to be able to listen. They are our 
constituents. They are our people. And so we want to make sure 
you can hear them well.
    Ms. Feldt. I appreciate it. Unfortunately, I personally 
can't stay, as I have another meeting with the administrator, 
but I do have Amy Hayden, through our Office of Congressional 
and Intergovernmental Affairs; and Randy Deitz, who is our 
senior adviser to our office and the Office of Solid Waste and 
Emergency Response. They will be staying on to hear and welcome 
any input, both at this hearing and throughout the public 
comment process, on all aspects, including the impact to small 
business.
    We definitely want to hear and consider all those factors, 
as I indicated in my testimony.
    Chairman Shuler. I want to thank you for your time and your 
commitment to this. And I truly feel that there is a solution, 
that we can come to a great compromise and get this thing 
resolved and worked out in a way that everyone wins. And that 
is what we try to--not everyone can win always, but we try to. 
I think in this situation, we can all win on this.
    So thank you so much and thank you for your testimony.
    And at this time, we will have the second panel come 
forward.
    Ms. Feldt. Thank you so much.
    Chairman Shuler. I certainly want to thank the next panel, 
obviously, for your commitment to be here, but also for your 
industries and what you mean to small businesses throughout 
this country.
    Obviously, we have heard from the EPA, and now we get an 
opportunity to hear from you. Just one thing, let's try to stay 
under that 5-minute mark. Read your testimonies as fast as you 
possibly can, because we are going to have votes in about 30 
minutes, and that could last a long time. So we are going to 
try to get through this as quickly as we possibly can and ask 
questions as fast as we can as well.
    Chairman Shuler. So, without further ado, our next witness 
is Dr. Craig Benson. Dr. Benson is the co-director of the 
Recycled Materials Resource Center in the University of 
Wisconsin-Madison. The center serves as a research and outreach 
facility for the beneficial use of recycled materials.
    Mr. Benson you will be recognized for 5 minutes.

          STATEMENT OF CRAIG H. BENSON, PH.D., PE, DGE

    Mr. Benson. Thank you, Mr. Chairman.
    I am glad to be invited here to provide my input and my 
experience to your committee. I want to make a few points from 
my testimony that I think are particularly important.
    The first one is that the safe and wise beneficial use of 
coal combustion products is truly good for our environment. We 
create more durable and longer-lasting infrastructure. As a 
result, we don't need to repair and replace things nearly as 
often. We really gain some significant benefits as a result.
    Just some calculations we have done, in terms of energy 
usage, savings on the order of 1.7 billion households of energy 
usage each year; 31 percent of the water use in California 
equivalent; equivalent greenhouse gas reduction of nearly 2 
million cars. These are really substantial beneficial impacts 
or beneficial attributes that we get from using these materials 
in sustainable construction.
    And I would argue that, given the pressing energy and 
climate issues that we are talking about today, that we ought 
to walk carefully when we make decisions about how we might 
affect that.
    The second point I would like to make is that we have been 
looking at this issue for nearly two decades of whether these 
materials are hazardous. And the materials that we are looking 
at today really are not different than the ones we have 
considered in the past to be nonhazardous. There really hasn't 
been a substantial change in those materials. There is really 
not a scientific reason to designate these materials as 
hazardous.
    The third point, and one of the issues of concern, is that 
the release of trace elements and other constituents from coal 
combustion products used in reuse applications--things like 
arsenic and cadmium were mentioned earlier--the thing that we 
need to realize is that all materials that we use in the 
environment release these things. And really what it gets down 
to is really safe and wise use of materials and engineering 
things properly so that we can manage those releases to the 
environment in a way that protects the public.
    We know when we use CCBs in a concrete like application 
that those releases are essentially negligible; that it is a 
very safe and wise use. Our history has shown that over time 
and time again.
    The fourth point, and I think this is a particularly 
important one, is that in the 20 years I have been working in 
this industry, interacting with people who use industrial 
byproducts in construction projects--people who actually put it 
into their infrastructure, who buy these products and assume 
responsibility for it being in the infrastructure. People like 
State highway departments, counties, public works directors, 
the people who buy that. And one of the key issues that we deal 
with in promoting the beneficial use of industrial byproducts 
is overcoming issues of perceived risk. People are concerned 
about the risk of using that product. And I would argue that 
the designation of these materials as a hazardous waste, even 
with an exemption for beneficial use, will have a very 
significant impact on that perceived risk and will result in a 
significant reduction in the use of these materials and 
construction.
    I would argue as well that it is not only these materials 
that will be affected by that, but all the industrial 
byproducts that we use will be affected adversely. One argument 
could be made if it is coal combustion products this year, what 
will it be next year? What is the use that I am going to be 
concerned about? That perceived risk is very real. The stigma 
associated with the hazardous waste designation is very real. 
And I consider that a major issue that we need to consider.
    I would argue as well that we actually know how to manage 
these materials in a very safe and wise way, both in the 
beneficial use application and in the disposal application. In 
my home State of Wisconsin, we have been doing this for 20 
years. We don't have environmental problems with our disposal 
facilities or with our reuse applications. Rules like we have 
in Wisconsin can be applied nationwide. They can be regulated 
at either the State or Federal level, and they can very 
effective. And I would argue that that type of example could be 
used to create some type of national rule or policy.
    So I will leave it at that point. Thank you.
    [The statement of Mr. Benson is included in the appendix.]
    Chairman Shuler. Thank you, Dr. Benson, for your testimony.
    Our next witness is Thomas Adams.
    Mr. Adams is executive director of the American Coal Ash 
Association located in Aurora, Colorado. The association is 
devoted to recycling materials created when coal is burned and 
generates electricity.
    Mr. Adams, you will be recognized for 5 minutes.

                   STATEMENT OF THOMAS ADAMS

    Mr. Adams. Thank you, Mr. Chairman.
    We appreciate the opportunity to come speak to you and the 
subcommittee today about this environmental success story that 
is under some threat right now.
    Our association has a diversity of membership in very large 
utilities to very small businesses. Many of our members, a 
great number of them, are small businesses that include 
entrepreneurs that are bringing marketing and technical and 
contracting services to the market and also bringing innovation 
to the market that will increase the beneficial use of coal 
combustion products and expand them so that we are using more 
recycled materials and less virgin material contributing to 
sustainability.
    Our production and use survey is conducted annually. For 
the last survey in year 2008, we determined 136 million tons of 
CCP weregenerated, which is the second largest waste stream in 
the country. Of that 136 million tons, 44 percent, or 60 
million tons, were recycled. Only 10 years ago, that recycling 
rate was 30 percent. So, in 10 years, we have increased our 
recycling almost 50 percent, not in small measure, including 
support from the EPA under its Coal Combustion Products 
Partnership, C2P2.
    It is curious to hear EPA testify that they support 
recycling, yet they have taken this program, which has gone a 
long way to expanding recycling, and suspended it and pulled 
down its Web site. So if EPA does in fact support recycling, 
they shouldn't be taking unilateral actions like that that 
deprive people of information on how to safely recycle.
    We want to keep to the time limits here and get right to 
the point. The stigma is real. We are seeing the effects in the 
marketplace of the shadow of regulation already starting to 
cause people to turn away from using these materials that are 
considered to be beneficial, even by EPA.
    When we take a look at the marketplace and we see that 
consumers have a choice between using a material which may be 
considered hazardous for some reason or choosing another 
product which doesn't have that stain or that stigma, the 
rational choice is to use the nonhazardous product. And that is 
where this stigma concern is coming from.
    So we know the stigma is real. The effects are not only 
from the use by specifying agencies, and you are going to hear 
from some of them very shortly, but also there are local 
governments and State governments that have prohibitions from 
using these materials beneficially if they are considered to be 
hazardous for any reason. Professional liability insurance may 
not be available for those designers who include these 
materials in their projects. And our small businesses are very 
concerned that venture capital is going to dry up, that the 
folks that provide that venture capital are not going to be 
willing to put their money into a product or a service that has 
a potential hazardous waste label stuck on it.
    In an effort to address these disposal problems, and we all 
know that there is a disposal problem, as indicated here in 
testimony today, the EPA has created a potential through that 
Subtitle C proposal to cripple, if not destroy, an industry 
that is heavily populated with small business which provide a 
substantial environmental and economic benefit to society. We 
do know that there is a better way, and we would like to 
suggest to you to the better way is for Congress to provide 
Subtitle D national enforcement authority to EPA.
    EPA itself has said publicly that Subtitle D rules are 
appropriate, and now we would like to see them have that tool 
so that we can get to that middle ground you talked about you 
talked about, Mr. Chairman, where we can compromise, protect 
human health, the environment and continue to promote 
recycling. Thank you.
    [The statement of Mr. Adams is included in the appendix.]
    Chairman Shuler. Thank you, Mr. Adams.
    Our next witness is Lisa Cooper, who is the senior vice 
president and general counsel of PMI Ash Technologies, 
headquartered in the great State of North Carolina, in Cary, 
North Carolina.
    You will be recognized for 5 minutes.

                    STATEMENT OF LISA COOPER

    Ms. Cooper. Thank you, Chairman Shuler, Ranking Member 
Luetkemeyer and distinguished members of the committee. I sit 
before you as the owner of a small business, a small business 
who focuses entirely on coal ash recycling and concrete.
    Although we appreciate the lengths EPA has gone to in using 
the words "special waste" instead of "hazardous waste," a 
Subtitle D option would be devastating to our small business 
and our competitors. EPA isn't listening. Despite repeated 
attempts to educate them by standard setting organizations and 
us, Lisa Feldt just testified that she didn't have enough 
information.
    I read to you from a prepublication letter from ASTM, dated 
December 22, 2009: A hazardous waste designation, even with an 
exclusion for beneficial use, would cause the ASTM standard for 
fly ash to be removed from project specifications, due to 
concerns over legal exposure, product liability and public 
perception. This will likely result in little or no fly ash 
being used beneficially in concrete or other applications that 
support sustainable objectives.
    No one, Chairman Shuler, is going to put concrete in their 
son Johnny's room with a hazardous waste in it. No one is going 
to want it in a hospital with their mother there.
    I met with EPA prior to the publication. I was honored to 
meet with them. They are not listening.
    Subtitle C won't work. It will drive good-paying green jobs 
offshore, mine and my competitors and many other innovative 
small businesses. We won't seize the opportunity to create 
thousands more green jobs, either, an opportunity for shovel-
ready projects today.
    We are for increased regulation of coal ash under Subtitle 
D. We are for EPA having direct enforcement authority under 
Subtitle D. And I would note, I am just really saddened that 
EPA didn't answer that question, whether they wanted Subtitle D 
authority. Because we actually asked them, why don't you 
partner with us, so you have a level playing field, so you can 
adequately look at Subtitle D with direct enforcement authority 
as well as Subtitle C with direct enforcement authority.
    We need Congress to quickly pass a bill to give EPA direct 
enforcement authority. Jobs in our sector and deals are no 
longer out there. Everyone is in a wait-and-see mode.
    The NGOs say there is a line in the sand. They won't talk 
with us because they want Subtitle C for disposal. They are 
willing to sacrifice our small business recycling industry to 
get Subtitle C.
    There is a lack of trust. We are caught in the middle, no 
one willing to listen. Our small businesses and our employees 
will not be able to survive these typical struggles in D.C.
    You need to break this logjam. Please work on a bill that 
provides Subtitle D regulations for coal ash but also provides 
direct enforcement authority, similar to municipal solid waste. 
This will create good-paying jobs.
    We create 180 temporary jobs in building our types of 
capital-intensive facilities and 44 permanent jobs. Our 
technology requires regulatory certainty. They are long-term 
deals. We don't even use venture banks; we use real banks. 
Banks, utilities, ash marketers, ready-mixed customers, all 
need to know that fly ash recycling and concrete is and will be 
okay and won't be stigmatized by a hazardous waste designation.
    CO2 savings are real. We are one of the few companies that 
have certified and verified CO2 credits, not through a 
voluntary scheme, but through the State of Massachusetts. It is 
very unfair for me as a small business sitting here hearing 
that EPA counted the CO2 benefits that our industry works for 
but didn't count the cost to us. Don't let regulatory 
overreaching get this wrong. Small businesses such as ours need 
you to stand up for us and take a stance. Thank you.
    [The statement of Ms. Cooper is included in the appendix.]
    Chairman Shuler. Thank you Ms. Cooper.
    Our next witness is Mr. Richard Stehly. Mr. Stehly is a 
principal of American Engineering Testing Incorporation, 
located in St. Paul, Minnesota. And American Engineering 
Testing is an employee-owned corporation providing 
geotechnology and environmental consulting and testing 
services.
    Mr. Stehly, you will be recognized for 5 minutes.

                STATEMENT OF RICHARD STEHLY, PE

    Mr. Stehly. Thank you, Mr. Chairman, and distinguished 
members of the subcommittee. Thank you for taking up this 
issue. I believe it is very, very important. And thank you for 
inviting me to give testimony.
    As you noted, I am a principal and founder of American 
Engineering Testing. In December 1989, it was a small business; 
it was 14 people. But we have had success, and it has grown to 
about 250 people.
    I am also an active member in the American Concrete 
Institute, and I am its president this year. The institute is 
106 years old, and it is the world's knowledge center on 
concrete. We have 20,000 members, many of them small 
businesses, designers, ready mixed suppliers, material 
suppliers, laboratories. They are all interested in this issue. 
We have more than 100 chapters, a third of them outside the 
U.S.
    For a standards developing organization, we are probably 
best known for our document the committee 318 generates. This 
is the Building Code Requirements For Structural Concrete. That 
code is then adopted by the International Code Council in the 
International Building Code. States then adopt the code as 
their building code. These are the minimums that are required 
for building structures with concrete.
    Code is translated into Spanish as an official version. It 
is used throughout Central America and South America. It is 
also translated into Arabic, Chinese. The Iranians translate it 
into Farsi. It is Korean and Portuguese. It is used worldwide. 
I visited Vietnam in April. We are about to sign a memorandum 
of understanding with Vietnam that will allow them to use the 
code for their structural concrete code.
    The code contains references to using fly ash in making 
concrete. Concrete is very useful in making--fly ash is very 
useful in making concrete. It makes it stronger and last 
longer. It can make it easier to place and reduces cost.
    Portland cement is the primary binder in concrete. It is 
energy intensive to make; about 5 million BTU to make a ton. It 
releases about a ton of CO2 when you make it.
    When we use fly ash there is pretty much a direct 
substitution. You use a ton of fly ash; you use a ton less of 
cement. Now, you will remember in December, in Denmark, at the 
UN Climate Summit, the President made a pledge to reduce CO2 
emissions, 2020, 17 percent over 2005 emission level. Currently 
the industry is about 40 percent below that target. It is 
because of the reduction in volume because of the economy. But 
going forward, construction will recover, and by using fly ash, 
we could stay under that target every year, including 2020.
    I provided you information from the U.S. Geologic Survey on 
cement use. They have been keeping information since about 
1900. If you look, cement use peaked in 2005 at about 128 
million tons. We produced about 100. We imported about 30. 
Currently, we are 40 percent under that peak, but as it 
recovers, as the economy recovers, construction recovers, it 
will grow. You can reduce the need to import cement by using 
fly ash.
    Lastly, there are no technical barriers to using more fly 
ash in concrete. The knowledge is there. It is in our 
documents. Fly ash is discussed in more than 100 of our 
technical documents.
    The barrier is acceptance. I have included in my written 
testimony an article by Nadine Post from the Engineering-News 
Record. Now, she had the courage to write in April what is on a 
concrete users' minds. She wants to know, is fly ash the next 
asbestos?
    I have seen no reply from the EPA. Managing supply ash's 
image is key to increasing acceptance. Now, as we know, EPA is 
considering a Subtitle C type of designation for its 
regulation. We think, if that should happen, use will decline. 
The many different audiences that have to assent to its use 
will consider it, and they will choose not to use it. These 
will be the generators. These would be the ready-mixed 
suppliers. These would be the engineers of record for the 
buildings. These would be the contractors. They will look at 
it, and they will turn away.
    Lastly, we are going to survey our industry. We are going 
to determine the impact of stigma. We will have those results 
available. We will provide them to EPA. We will provide them to 
you if you wish and OMB. Thank you.
    [The statement of Mr. Stehly is included in the appendix.]
    Chairman Shuler. Thank you, Mr. Stehly.
    Our next witness is William Gehrmann. Mr. Gehrmann is the 
president of Headwaters Resources Incorporated in South Jordan, 
Utah. Headwaters Resources is a marketer of coal ash combustion 
products.
    Mr. Gehrmann, you will be recognized for 5 minutes.

                STATEMENT OF WILLIAM H. GEHRMANN

    Mr. Gehrmann. Thank you, Mr. Chairman, honorable members of 
the committee.
    Our company is the Nation's largest marketer of coal 
combustion byproducts in the country, with operations on over 
100 power plant sites.
    As a manager and marketer of coal ash, Headwaters touches 
every link in this chain of activity that makes beneficial use 
of the material possible. Small businesses comprise a 
significant portion of many of the links in this chain.
    As other witnesses at this hearing will testify, using coal 
ash instead of disposing it creates significant benefits for 
the environment and users of the material. The environment 
benefits by conserving natural resources and constructing fewer 
landfills. Use of coal ash to replace cement also results in 
millions of tons of greenhouse gas emission reduction.
    Coal ash users benefit by being able to make products that 
are stronger and more durable than products made without coal 
ash. Coal ash also has properties that help engineers solve 
specific problems, such as the presence of reactive aggregates 
in concrete.
    But just because the benefits of using coal ash are great 
does not mean it is easy to get people to use it. Significant 
investments must be made to be able to transport and deliver 
materials to users so that it is available when they need it. 
Users must be educated on how to properly use the materials, 
the benefits of the materials, and how to properly handle them.
    Additionally, it is important to remember that coal ash 
users have alternatives to using coal ash and can choose to 
eliminate its use.
    In my written testimony, I describe several levels of the 
coal ash beneficial use industry and explain how each level 
must respond to a hazardous-when-disposed designation for coal 
ash. These levels include ash producers; utilities that 
generate it; ash marketers, like Headwaters; ash technology 
developers and providers, like PMI Ash Technologies; product 
specifiers; ash users; and end users. All these parties will 
find it more difficult to use coal ash if it is designated 
hazardous for disposal.
    If any of these levels decided that using coal ash was a 
bad idea, then the beneficial use of coal ash would 
significantly decrease. As I describe in my written testimony, 
all of these levels would face major challenges if coal ash 
were designated as a hazardous waste for disposal.
    Some of the participants in the coal ash chain will worry 
about their health and safety if coal ash is labeled hazardous. 
Other participants will worry about being sued by people who 
are worried about their health and safety if coal ash is 
labeled hazardous. Most participants will have to deal with a 
host of unanswered questions relating to how they will have to 
change their handling of the material if coal ash is labeled 
hazardous.
    The damage from this proposal is already being felt. In 
proposing a hazardous-when-disposed regulatory framework for 
coal ash, the U.S. EPA has already created a new barrier to 
increasing the beneficial use of coal ash. End users exposed to 
a barrage of negative news articles about coal ash have already 
begun calling our concrete producer customers asking if the 
concrete they are using contains a dangerous material.
    Some product specifiers, such as the Los Angeles Unified 
School District, have already removed coal ash from their 
concrete specifications as a direct result of the EPA's 
proposal.
    We are seeing an increase in requests to amend 
indemnification language in supply and purchase agreements, 
pushing any potential liabilities and risks all the way down 
the coal ash supply chain. Many small businesses along the 
supply chain will be forced to make difficult decisions 
regarding the continued use of coal ash in their products. Many 
of these businesses were built around the beneficial use of 
coal ash.
    In meetings with me and other representatives of the coal 
ash industry, EPA officials have indicated they support the 
beneficial use of ash, but actions speak louder than words. And 
EPA has done precious little to demonstrate support for 
legitimate coal ash use.
    To the contrary, EPAhas unilaterally and without 
explanation removed its Coal Combustion Products Partnership 
information from its Web site. End users seeking information 
from the EPA about coal ash are now greeted with a single 
statement that Coal Combustion Products Partnership program Web 
pages have been removed while the program is being reevaluated.
    The irony of this is also unnecessary. The actual 
engineering standards for disposal facilities are essentially 
the same under the EPA's two proposals. The EPA's hazardous 
proposal appears calculated primarily to get Federal 
enforcement authority over the regulatory program. EPA appears 
to be willing to sacrifice a substantial and beneficial 
industry merely to obtain greater regulatory influence.
    EPA should do what is right for the environment, not what 
is best for the EPA's authority. The best course of action for 
our Nation's environment is one that encourages safe and 
beneficial coal ash used as a preferred alternative to 
disposal. Whatever material remains unused can then be disposed 
in a safe and effective manner.
    The hazardous-when-disposed approach proposed by the EPA 
will have exactly the opposite effect, reducing coal ash use 
activities and therefore creating more waste that will be 
landfilled.
    Thank you for the invitation to testify and for your 
interest in this important topic.
    [The statement of Mr. Gehrmann is included in the 
appendix.]
    Chairman Shuler. Thank you, Mr. Gehrmann.
    Our next witness is Robert Garbini. Mr. Garbini is the 
president of the National Ready Mixed Concrete Association.
    You will be recognized for 5 minutes.

                STATEMENT OF ROBERT GARBINI, PE

    Mr. Garbini. Thank you, Chairman Shuler, Ranking Member, 
Mr. Bright and Mrs. Dahlkemper, thank you for the invitation to 
testify on behalf of the National Ready Mixed Concrete 
Association.
    As a matter of scale, ready-mixed concrete consumes 75 
percent of all the portland cement used in this country. We 
also represent 1,500 concrete manufacturers in 50 of the State-
affiliated organizations. Approximately 85 percent of 
NRMC'smembers are small businesses.
    Concrete is the most widely used construction material in 
the world. It is produced and consumed in every part of this 
country. In fact, no construction takes place without some kind 
of concrete products in it.
    . Based on NRMC's latest industry data survey, we estimate 
the U.S. ready-mixed concrete industry exceeded $25 billion in 
2009, with over 130,000 people directly deriving their 
livelihood from the industry.
    With regard to the proposed rule, the ready-mixed concrete 
industry is the largest user, beneficial user, of fly ash. In 
2008 alone, which was a down year, the industry used 15.8 
million tons of fly ash in the manufacturing of ready-mixed 
concrete, making fly ash by far the most widely used 
supplemental cementitious material. A 1998 survey of ready-
mixed concrete producers showed that over 55 percent of all the 
ready-mixed concrete contained fly ash at an average of 20 
percent by weight of total cementitious materials. It is 
probably higher at this point, certainly higher.
    Fly ash is used in combination with portland cement to 
impart beneficial qualities to concrete. The environmental 
benefits of using industrial byproducts in concrete results in 
longer-lasting structures and reductions in waste materials 
sent to landfills, raw materials extracted, energy required for 
production and air emissions, including CO2.
    There are also economic benefits using fly ash in concrete. 
Fly ash is significantly less expensive than portland cement 
and, therefore, reduces the material cost of concrete while 
providing enhanced benefits and performance.
    Also, the concrete industry, while it uses significant fly 
ash, it is estimated that there still remains about 42 million 
tons of fly ash that our landfilled annually. Although not all 
fly ash is of significant quality for use in concrete, it is 
still estimated that the concrete industry could increase its 
current use to above 30 million tons per year by 2020, which 
would reduce the concrete industry's carbon footprint by 20 
percent.
    Based on the ready-mixed concrete industry's extensive use 
of and reliance on fly ash in concrete and after examining 
EPA's proposed rule, we have determined that the RCRA Subtitle 
C as a hazardous designation for fly ash will lead to these 
following unintended consequences for small businesses in our 
industry: Number one, an increase in production costs; number 
two, an increase in the liability for concrete producers, as 
you have heard also from some of the previous speakers; number 
three, the stigma for the use of fly ash in concrete; the 
potential elimination of fly ash in concrete and a dramatic 
impact on the Nation's infrastructure.
    I would also add that we are still evaluating whether or 
not we would even want to see the designation of EPA's control 
under a Subtitle D. We are still not quite--we intend to do a 
survey, which we should have back in the next 3 months. We have 
asked EPA for a 120-day extension. We are waiting for the 
response back from that.
    Mr. Chairman, members of the subcommittee, thank you for 
hearing my concerns.
    [The statement of Mr. Garbini is included in the appendix.]
    Chairman Shuler. Thank you, Mr. Garbini.
    I appreciate your testimony.
    I would like to yield to the ranking member, Mr. 
Luetkemeyer, for introduction of our next witness.
    Mr. Luetkemeyer. Thank you, Mr. Chairman.
    Mr. Bross is an owner of Chester Bross Construction Company 
and president of Mark Twain Redi-Mix in Hannibal, Missouri. 
Chester Bross Construction Company, founded in 1966, is an 
award-winning general contractor in the construction industry. 
From driveways to highways, Mr. Bross's company performs a wide 
variety of construction activities throughout the Midwest. Mark 
Twain Ready Mixed manufactures and delivers ready-mixed 
concrete and related products to commercial, residential and 
public projects.
    Jeff is president of the Missouri Asphalt Pavement 
Association and vice chairman of the Missouri/Kansas Chapter of 
the American Concrete Pavement Association.
    Jeff, thanks for being here today, and the committee looks 
forward to your testimony.

                   STATEMENT OF JEFFREY BROSS

    Mr. Bross. Thank you for having me. Good morning. Most of 
my points have been touched on at length here.
    Chairman Shuler. Pull your microphone a little closer, 
please, sir.
    Mr. Bross. Can you hear me now? Okay.
    Like I said, most of my points have already been touched 
on, so there is no reason to dwell on them.
    We do ready-mixed and highway paving all over the Midwest. 
And our biggest concern is that we are taking a product that 
has taken years to get acceptability in the specifying industry 
and the contracting industry to where it--and it also improves 
the quality of the ready-mixed concrete in almost all cases. I 
don't know if that has been mentioned or not. And it has also 
been specified now as a requirement in certain projects for the 
benefits it provides to the material.
    It also, as far as a hazardous situation, that has been 
expounded on, it obviously isn't when used in concrete. And to 
tie it to this Subchapter C is going to propose a liability 
that we are fairly certain we are not going to be able to 
sustain as far as insurance and bonding and things of that 
nature if we continue to use fly ash, because the way we 
understand it, the responsibility or liability is going to fall 
to us if it is declared hazardous and then lawsuits come out 
and all that down the line.
    So I guess my quick, simple point is you have got a product 
that makes concrete better. Every time you put it in the 
concrete, you are using less portland cement, which means less 
carbon footprint going out the stacks of the cement plants and 
the kilns.
    If you don't use the fly ash because of all this liability, 
you are going to have that much more to get rid of somewhere. 
That is being handled very well right now on a good quality-
control basis. And I just I am kind of a commonsense guy. It 
just looks like we are here to--I don't even understand why we 
are talking about this. That is really all I got.
    [The statement of Mr. Bross is included in the appendix.]
    Chairman Shuler. That happens a lot here in Washington.
    But you have a panel--you know, as a panel you are 
certainly--your input and expertise really helps us make much 
better decisions in the things that we are able to do.
    And, you know, even within this panel, I can even hear 
differences of opinion, and that makes it even more difficult 
to come to some agreement on. And we are going to try to get 
through as many questions as we possibly can, that way you can 
go on about your business.
    Dr. Benson, the State of Wisconsin has stronger regulations 
for disposal on the reuse of coal ash than most States do, but 
yet you double the national average. So what are you doing 
within Wisconsin that has tough regulations but actually 
doubles the national? Average, what are you doing? How are you 
able to educate?
    I know, Mr. Garbini, we are talking about leaving it to the 
States because, I mean, heaven forbid, if one State says it is 
a hazardous waste, then that knocks everybody out. And so we 
got to find some uniformity.
    And I know Mr. Adams, in his testimony, and we are on the 
same page talking about giving them the regulation under D; 
that way we can have uniformity. Because one State--I mean, I 
don't know which State, maybe the Pacific Coast side, if they 
want to decide it is a hazardous waste, then ultimately, we end 
up that it impacts everyone in the industry. And we talk about 
insurance, liability, litigation.
    So what are you doing in Wisconsin that increases, doubles 
the amount of use but also have somewhat good regulations?
    Mr. Benson. Well, I would indicate that we actually do two 
things. We have a disposal regulation that mimics Subtitle D. 
And that provides us with a vehicle when we need to dispose of 
these materials that is safe and protective of the environment. 
It has been very effective. We actually at our modern disposal 
facilities haven't had a single environmental compliance issue 
with regard to groundwater in those modern facilities. So we 
have a code that is like Subtitle D, that provides safe 
containment of these materials.
    The other thing that we have is we have vehicles in our 
regulation that allow us to use these materials. We recognize 
their value. We recognize the importance of using our resources 
wisely. And we developed a code, in collaboration with industry 
stakeholders, environmental stakeholders, and regulators, that 
allows us to use these materials in a very safe and wise manner 
that is both protective of the environment but also allows them 
to be used in construction.
    So through those two vehicles, we have been very successful 
in increasing the use of coal combustion products and other 
industrial byproducts, while also ensuring that we protect the 
environment in disposal applications.
    Chairman Shuler. I am going to recognize Mr. Luetkemeyer 
for his questions.
    Mr. Luetkemeyer. Thank you, Mr. Chairman.
    Mr. Bross, during your testimony, you indicated that it 
improves the quality. Could you give me examples of how it 
improves the quality of the concrete?
    Mr. Bross. Well, some of these guys here are probably much 
more qualified technically.
    Mr. Luetkemeyer. I want real-world experience.
    Mr. Bross. When you use fly ash, in most instances, you get 
a higher strength material, and it is also more durable. You 
can use less cementitious material, which is going to affect 
your shrinkage and curling of your concrete. In like a large 
flat board pour, that makes a big difference in how much the 
concrete shrinks and curls, and things like that. It is hard on 
the--a lot of things. These guys can tell you.
    And then there is also a silica reactivity, which I am not 
all that technical on. I just know that using fly ash in the 
concrete helps offset this alkali silica reactive--it is the 
aggregates, right, that cause it? And if you take it away, you 
have got this ASR problem down the road, where the concrete 
deteriorates. And they had a huge problem with it in 
Pennsylvania, I know, and in Texas, a lot of places around the 
country.
    Mr. Luetkemeyer. Whenever you are working with it and you 
are handling it and you are putting it into your mix, what are 
the things that you do to protect your people and the 
environment around that? I am sure there are some sort of 
controls on that. Would you just elaborate just for a second?
    Mr. Bross. It is all controlled. It is air tight, 
basically. You have hoses hooked up to your truck before you 
open any valves. You open the valves. You put pressure to the 
tank, and you blow it up into a silo or a storage vessel. And 
that is vented into a pollution control device, a bag house, 
that is 99.99 percent efficient at trapping it, and none of 
it--essentially none escapes.
    Mr. Luetkemeyer. So, basically, handling is not a problem 
either?
    Mr. Bross. No, sir.
    Mr. Luetkemeyer. And it has never been--the scientific 
stuff here is--let me just wrap up my thoughts here.
    The EPA folks are still here, and I think you have heard 
the testimony of the folks in the real world who deal with this 
every day. And we don't have any sound science that says this 
is a bad product.
    During the testimony, EPA mentioned or agreed that it is an 
impoundment problem. I think that is where we need to focus.
    I do have a concern about, Mr. Benson, and I think Mr. 
Gehrmann mentioned, that the EPA has pulled from the Web site 
information on recycling of this, is that correct? I would 
certainly like to know why EPA pulled that from their Web site 
when there has been no definitive ruling about this. I think it 
is very important. We are talking about recycling something 
here that I think is important to the environment. It is 
important to the industry and a lot of folks here.
    So I would certainly appreciate that, Mr. Chairman. With 
that, I would yield back.
    Chairman Shuler. Thank you.
    Sir, I couldn't agree more with you from the standpoint I 
can't understand why they took that from the Web site. Let's 
hope that it is just a technical glitch, and it will be up next 
week. We are hoping that will be the case.
    Ms. Cooper, you are the small business. I mean you 
exemplify everything about small business. How many employees 
do you have?
    Ms. Cooper. Twenty-one.
    Chairman Shuler. Twenty-one, a small business, that is 
perfect.
    Tell me about the stigma. What is happening now? Tell me 
about the stigma that is happening in the industry now, but 
then what will be the bottom line if it is designated under 
Subtitle C?
    Ms. Cooper. We see no deals. Everybody is in a wait-and-see 
mode. The EPA's actions, and we told them this prior to the 
rule coming out, have people laying off. There are fly ash 
marketers that are laying off. We have been able to retain our 
employees.
    The markets get even more jittery when EPA does things that 
demonstrate they don't understand the markets, like taking down 
the Web site and suspending their support for the program 
without talking to partner agencies. If they would have talked 
to us ahead of time, we could have warned people.
    But if there are beneficial-use deals that are in the mix, 
no one is going to take those deals seeing EPA do these type of 
things.
    The industries that they are basing their assumption, that 
if it is a hazardous waste exemption, it is going to increase, 
are very different than ours. The chain of title is very 
different. And there are not as many small businesses in there 
that will not be able to withstand indemnifications and other 
things.
    If it does go to a Subtitle C, I fully expect that ASTM and 
the gentleman next to me, who is with ACI in a volunteer 
capacity, will be telling people, you know, it is a hazardous 
waste in other settings. And you will have consumers, like in 
Missouri, if you look at the Corps of Engineers recently held a 
hearing, and numbers of people came out and even with a binder 
in there, they said we don't want fly ash in there because it 
is toxic. I expect that our industry will not survive, and it 
will not be able to be built back. You hear, by people who have 
more gray hair and not as good hair dressers as mine, that it 
has taken years to get to this point, and we won't be able to 
go back and resurrect it.
    Chairman Shuler. Thank you, Ms. Cooper.
    I appreciate everyone's testimony today.
    I think that the EPA has listened today. I think that here 
is an opportunity for an entire panel. And I think there is an 
opportunity for us, whether it be through legislation, as the 
ranking member and I have been talking about. We have worked 
with some of you already on the legislation, and working with 
EPA.
    Now, at this point in time, we have started the fight 
together; crossing the aisle, we have done that together. Now 
it is, how can we work together? And now has to be, how can we 
work with the EPA? How can we do this in order to make sure 
that we are all on the same page, that we can save the jobs, 
that we can protect the environment, we can lower our emissions 
footprint?
    So now is the time for us to work together. And moving 
forward, there has to be a way that we can come to common 
ground, unite together under the fact that we want to do what 
is right for the environment, we want to do what is right for 
human health, but we also want to do what is right for our 
businesses as well and ensure that the small businesses have a 
voice. Your voice has been heard today.
    And I would like to thank the ranking member and my 
colleagues.
    And obviously, as you see, we have 5 minutes to go vote.
    I ask for unanimous consent that the record be open for 5 
days for members to submit their statements.
    Hearing no objection, so ordered.
    This hearing is adjourned.
    [Whereupon, at 11:45 a.m., the subcommittee was adjourned.]

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