    [House Hearing, 112 Congress]
    [From the U.S. Government Publishing Office]

    H.R. 1391, THE RECYCLING COAL COMBUSTION RESIDUALS ACCESSIBILITY ACT OF
                                      2011

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

                                    HEARING

                                   BEFORE THE

                  SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY

                                     OF THE

                        COMMITTEE ON ENERGY AND COMMERCE

                            HOUSE OF REPRESENTATIVES

                          ONE HUNDRED TWELFTH CONGRESS

                                 FIRST SESSION

                                   __________

                                 APRIL 14, 2011

                                   __________

                               Serial No. 112-40

          Printed for the use of the Committee on Energy and Commerce

                            energycommerce.house.gov

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                        COMMITTEE ON ENERGY AND COMMERCE

                              FRED UPTON, Michigan
                                     Chairman

    JOE BARTON, Texas                    HENRY A. WAXMAN, California
      Chairman Emeritus                    Ranking Member
    CLIFF STEARNS, Florida               JOHN D. DINGELL, Michigan
    ED WHITFIELD, Kentucky                 Chairman Emeritus
    JOHN SHIMKUS, Illinois               EDWARD J. MARKEY, Massachusetts
    JOSEPH R. PITTS, Pennsylvania        EDOLPHUS TOWNS, New York
    MARY BONO MACK, California           FRANK PALLONE, Jr., New Jersey
    GREG WALDEN, Oregon                  BOBBY L. RUSH, Illinois
    LEE TERRY, Nebraska                  MICHAEL F. DOYLE, Pennsylvania
    MIKE ROGERS, Michigan                ANNA G. ESHOO, California
    SUE WILKINS MYRICK, North Carolina   ELIOT L. ENGEL, New York
      Vice Chair                         GENE GREEN, Texas
    JOHN SULLIVAN, Oklahoma              DIANA DeGETTE, Colorado
    TIM MURPHY, Pennsylvania             LOIS CAPPS, California
    MICHAEL C. BURGESS, Texas            JANICE D. SCHAKOWSKY, Illinois
    MARSHA BLACKBURN, Tennessee          CHARLES A. GONZALEZ, Texas
    BRIAN P. BILBRAY, California         JAY INSLEE, Washington
    CHARLES F. BASS, New Hampshire       TAMMY BALDWIN, Wisconsin
    PHIL GINGREY, Georgia                MIKE ROSS, Arkansas
    STEVE SCALISE, Louisiana             ANTHONY D. WEINER, New York
    ROBERT E. LATTA, Ohio                JIM MATHESON, Utah
    CATHY McMORRIS RODGERS, Washington   G.K. BUTTERFIELD, North Carolina
    GREGG HARPER, Mississippi            JOHN BARROW, Georgia
    LEONARD LANCE, New Jersey            DORIS O. MATSUI, California
    BILL CASSIDY, Louisiana              DONNA M. CHRISTENSEN, Virgin
    BRETT GUTHRIE, Kentucky              Islands
    PETE OLSON, Texas
    DAVID B. McKINLEY, West Virginia
    CORY GARDNER, Colorado
    MIKE POMPEO, Kansas
    ADAM KINZINGER, Illinois
    H. MORGAN GRIFFITH, Virginia

                                     7_____

                  Subcommittee on Environment and the Economy

                             JOHN SHIMKUS, Illinois
                                     Chairman
    TIM MURPHY, Pennsylvania             GENE GREEN, Texas
      Vice Chairman                        Ranking Member
    ED WHITFIELD, Kentucky               TAMMY BALDWIN, Wisconsin
    JOSEPH R. PITTS, Pennsylvania        G.K. BUTTERFIELD, North Carolina
    MARY BONO MACK, California           JOHN BARROW, Georgia
    JOHN SULLIVAN, Oklahoma              DORIS O. MATSUI, California
    CHARLES F. BASS, New Hampshire       FRANK PALLONE, Jr., New Jersey
    ROBERT E. LATTA, Ohio                DIANA DeGETTE, Colorado
    CATHY McMORRIS RODGERS, Washington   LOIS CAPPS, California
    GREGG HARPER, Mississippi            JOHN D. DINGELL, Michigan
    BILL CASSIDY, Louisiana              HENRY A. WAXMAN, California (ex
    CORY GARDNER, Colorado                   officio)
    JOE BARTON, Texas
    FRED UPTON, Michigan (ex officio)

                                      (ii)

                                 C O N T E N T S

                                  ----------
                                                                       Page
    Hon. John Shimkus, a Representative in Congress from the State of
      Illinois, opening statement....................................     2
        Prepared statement...........................................     4
    Hon. Gene Green, a Representative in Congress from the State of
      Texas, opening statement.......................................     6
    Hon. Tim Murphy, a Representative in Congress from the
      Commonwealth of Pennsylvania, opening statement................     6
    Hon. Fred Upton, a Representative in Congress from the State of
      Michigan, prepared statement...................................   198
    Hon. Diana DeGette, a Representative in Congress from the State
      of Colorado, prepared statement................................   199

                                   Witnesses

    Mathy Stanislaus, Assistant Administrator, Office of Solid Waste
      and Emergency Response, Environmental Protection Agency........     7
        Prepared statement...........................................    10
        Answers to submitted questions...............................   204
    Thomas H. Adams, Executive Director, American Coal Ash
      Association....................................................    53
        Prepared statement...........................................    55
        Answers to submitted questions...............................   210
    Mary T. Zdanowicz, Executive Director, Association of State and
      Territorial Solid Waste Management Officials...................    60
        Prepared statement...........................................    62
        Answers to submitted questions...............................   214
    Ari S. Lewis, Senior Environmental Toxicologist, Gradient........    71
        Prepared statement...........................................    73
        Answers to submitted questions...............................   223
    Dawn Santoianni, Senior Engineer, Veritas Economic Consulting LLC    87
        Prepared statement...........................................    89
        Answers to submitted questions...............................   227
    Lisa Evans, Senior Administrative Counsel, Earthjustice..........    97
        Prepared statement...........................................    99
        Answers to submitted questions...............................   231
    Curtis Havens, Chester, West Virginia............................   171
        Prepared statement...........................................   173

                               Submitted Material

    Letter of November 14, 2010, from Michael J. Kosnett et al. to
      Lisa Jackson, Administrator, Environmental Protection Agency,
      submitted by Mr. Shimkus.......................................   184
    Letter of April 13, 2011, from Thomas R. Kuhn, President, Edison
      Electric Institute, to subcommittee leadership.................   187
    Letter of April 13, 2011, from R. Steven Brown, Executive
      Director, Environmental Council of the States, to subcommittee
      leadership.....................................................   190
    Letter of October 22, 2010, from FirstEnergy Generation Corp.,
      submitted by Mr. Shimkus.......................................   193
    Letter of February 4, 2011, from Frank Lubich, Vice President,
      Central Fleet Operations, FirstEnergy Generation Corp. to Bruce
      Mansfield Plant neighbors, submitted by Mr. Shimkus............   195
    H.R. 1391, A Bill in the House of Representatives, submitted by
      Mr. Shimkus....................................................   200

    H.R. 1391, THE RECYCLING COAL COMBUSTION RESIDUALS ACCESSIBILITY ACT OF
                                      2011

                                  ----------

                            THURSDAY, APRIL 14, 2011

                      House of Representatives,
           Subcommittee on Environment and the Economy,
                              Committee on Energy and Commerce,
                                                        Washington, DC.
        The subcommittee met, pursuant to call, at 9:34 a.m., in
    room 2322, Rayburn House Office Building, Hon. John Shimkus
    (chairman of the subcommittee), presiding.
        Present: Representatives Shimkus, Murphy, Whitfield, Pitts,
    Bass, Latta, McMorris Rodgers, Harper, Cassidy, Gardner,
    Barton, Green, Barrow, Dingell, and Waxman (ex officio).
        Staff Present: Charlotte Baker, Press Secretary; Jim
    Barnette, General Counsel; Michael Beckerman, Deputy Staff
    Director; Anita Bradley, Senior Policy Advisor to Chairman
    Emeritus; Jerry Couri, Professional Staff Member, Environment;
    Cory Hicks, Policy Coordinator, Energy and Power; Heidi King,
    Chief Economist; Dave McCarthy, Chief Counsel, Environment and
    the Economy; Carly McWilliams, Legislative Clerk; Andrew
    Powaleny, Press Assistant; Tina Richards, Senior Policy Advisor
    to Chairman Emeritus; Chris Sarley, Policy Coordinator,
    Environment and the Economy; Jackie Cohen, Minority Counsel;
    Greg Dotson, Minority Energy and Environment Staff Director;
    and Caitlin Haberman, Minority Policy Analyst.
        Mr. Shimkus. The hearing will now come to order. And we
    want to welcome everybody here today.
        Before I recognize myself for 5 minutes for the purpose of
    making an opening statement, I would like to make two unanimous
    consent requests.
        First, I ask unanimous consent that all members of the
    subcommittee may have 5 legislative days to submit their
    opening statements for the record.
        And, secondly, I would like to ask unanimous consent that
    both Representatives McKinley and Markey, both nonmembers of
    the subcommittee, be permitted to sit in and ask questions of
    the witnesses on our panel after all sitting members of the
    subcommittee have been afforded their opportunity to ask
    questions.
        Without objection, so ordered.
        And I will recognize myself for 5 minutes.

      OPENING STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN
                  CONGRESS FROM THE STATE OF ILLINOIS

        I have a prepared statement, but I am going to start by
    highlighting and passing around two books, one from the EPA and
    U.S. Department of Transportation, along with the Coal Ash
    Association, which talk about the beneficial uses of coal ash.
    Also, another booklet that is coauthored by the Federal Highway
    Administration, the Department of Energy, the EPA, also on the
    benefits of coal ash. And I will pass those around for my
    colleagues.
        Also, as a former teacher, I am a hands-on-training-type
    guy. So I am going to also pass around--now, if you are afraid
    of toxicity, don't touch. But if you are not, like me, you can
    see all of these beneficial uses of fly ash and coal ash in
    reclamation and in productions of stuff that you wouldn't even
    imagine--countertops, shingles, gypsum.
        So the concern today is, as the EPA moves forward, if they
    move in the wrong direction, they are going to do more harm
    than good. Because all this stuff that is in homes will then be
    considered toxic, we will have a big issue, and the recovery
    and recycling ability of what we have now will exponentially
    create larger problems in landfills throughout this country.
        So, with that, if you would pass these around to my
    colleagues and friends, and we will get them over to your side,
    Gene, in a minute.
        Mr. Green. I just want to know if that--that wallboard is
    not from China, is it?
        Mr. Shimkus. This is good, American-made wallboard with fly
    ash from U.S. coal-fired power plants.
        So today's legislative hearing is on 1391, to prohibit the
    U.S. EPA from regulating fly ash waste, bottom ash waste, slag
    waste, and flue gas emission control waste generated primarily
    from the combustion of coal and other fossil fuels under
    subtitle C of the Solid Waste Disposal Act; or, in plain
    English, forbid EPA from designating coal combustion residue as
    hazardous waste under the Solid Waste Disposal Act.
        [The bill appears at the conclusion of the hearing.]
        It would come as no surprise to many Members that I am
    enormously skeptical of the efforts by the EPA to begin
    regulating coal combustion products as hazardous waste. My
    district is heavily reliant on coal for its electricity
    generation.
        In the first hearing this subcommittee had this Congress,
    my constituent, the manager of a local rural electric
    cooperative--that is a not-for-profit entity, for those who are
    in the business--and a former environmental officer at the
    Illinois Environmental Protection Agency testified that doing
    so would increase utility rates for, again, a not-for-profit
    electricity company by 25 percent.
        With historical high unemployment when EPA first proposed
    this rule and persistently high unemployment while EPA takes
    its time considering it, now is not the time to send a dramatic
    negative signal to the economy that jobs are unimportant.
        While I do not believe a regulatory dictate should change
    chemistry or make something harmful, I am also not
    unsympathetic to making sure items that are made safe simply
    because we as legislators say so. The question is not whether
    we need public health protections but, rather, what protections
    make the most sense and who is best capable to seamlessly
    handle this matter. I would note that the bill we are
    discussing today does not forbid any regulation of coal
    combustion residues.
        Moreover, we should not use scare tactics, claiming the
    public is not protected unless the Feds are on the case. The
    States have a good story to tell, and we should understand its
    impact on this equation. Many thoughtful people, including 43
    States, the State Environmental and Highway Officials, the
    Conference of Mayors, have publicly spoken out against EPA's
    proposal for subtitle C.
        To fundamentally assess 1391, I believe two major proposals
    EPA has made on this subject, disposal and beneficial use, each
    must be examined with their own sets of questions.
        First, the Bevill amendment required EPA to make a
    determination.
        Second, EPA has twice ruled that coal combustion residues
    do not merit treatment as a hazardous waste under subtitle C.
    What has changed in the valid, verifiable science to support a
    change in position, or was it just an election that changed the
    position?
        Third, what is so different about these proposals from a
    purely environmental protection standpoint? I am most concerned
    in distinguishing the differences from a safety concern as it
    relates to groundwater monitoring and landfill lining, as
    opposed to simply Federal versus State enforcement.
        Fourth, what is the practical impact and what can history
    tell us about how people will respond to a hazardous-waste
    designation from an electric reliability and management
    perspective, which is where I talked about cost and then the
    cost of dealing with the fly ash.
        On the beneficial use side, we should first understand
    whether subtitle C will encourage recycling of coal combustion
    products or frighten investors and destroy jobs creating
    otherwise safe products. While EPA lips are saying, we support
    beneficial reuse, we need to explore whether encapsulation
    requirements for beneficial use increase recycling. If not, for
    those beneficial uses that remain, will the stigma of being
    labeled as ``hazardous'' limit opportunity and increase legal
    liability? I would say it will. Not to mention invite new
    parties into a morass known as the Superfund? Which I also
    believe it will.
        Finally, what are the costs for our society for lost
    products, like long-lasting roads or needs for arduous,
    expensive new subtitle-C-compliant landfill capacity?
        I look forward to answers on these questions and other
    questions. I want to welcome all the witnesses who joined us to
    bring their views and expertise to bear on this issue.
        I also want to recognize the hard work that both Mr. Latta
    and Mr. McKinley have done on this issue.
        I yield back the balance of my time and now recognize the
    ranking member of the subcommittee, Mr. Green, for 5 minutes.
        [The prepared statement of Mr. Shimkus follows:]
        [GRAPHIC] [TIFF OMITTED] T0732.001

        [GRAPHIC] [TIFF OMITTED] T0732.002

       OPENING STATEMENT OF HON. GENE GREEN, A REPRESENTATIVE IN
                    CONGRESS FROM THE STATE OF TEXAS

        Mr. Green. Good morning. And thank you, Mr. Chairman, for
    holding this hearing today on the coal combustion and waste and
    H.R. 1391 legislation to prohibit the EPA from regulating
    fossil fuel combustion waste under subtitle C of the Solid
    Waste Disposal Act.
        I would like to welcome not only our witness in the first
    panel but also our second panel.
        The last hearing we had on coal combustion waste was in
    2009, and this is the first hearing we have had on coal ash
    since the EPA has issued proposed regulations.
        Coal generates approximately 45 percent of the power in our
    country. As we will hear from our witnesses today, coal ash can
    be recycled and converted into everyday materials. In 2008, 136
    million tons of coal combustion waste was generated. Industry
    estimates indicate that 8 percent of it is disposed in mines as
    minefill; 37 percent is used in such capacities as concrete,
    cement, gypsum, wallboard, and structural and backfill that our
    chairman gave us some examples of.
        Promoting recycling of coal combustion waste serves both an
    economic and environmental purpose. There are companies that
    specialize in producing recycled coal ash products, and this
    prevents coal ash from ending up in landfills. I don't think
    any one of us on this subcommittee wants to prohibit the
    recycling of coal combustion waste or, particularly, force
    companies that recycle coal ash out of business. However, we
    must ensure that public safety and health is also taken into
    account as we consider legislation on this issue.
        In 2008, the Tennessee Valley Authority's Kingston
    Tennessee plant released 1.1 billion gallons of coal ash slurry
    through a breach in an impoundment pond. The sludge discharged
    into nearby Emory and Clinch Rivers, filling a large area of
    the rivers and resulting in fish kills. Rightfully so,
    individuals are still concerned about lingering water
    contamination as a result of this breach, and the estimated
    cleanup costs will likely reach $1.2 billion.
        However, I firmly believe we can work to prevent disasters
    such as the Tennessee Valley incident and come to an agreement
    on how to promote the recycling of coal combustion waste. That
    is why this hearing is important today. And Congress needs to
    hear from all sides surrounding the coal ash, so we can make an
    educated decision on how to proceed.
        And, again, I look forward to the testimony, Mr. Chairman,
    and our witnesses today. And thank you for having the hearing.
        Mr. Shimkus. The gentleman yields back the time.
        The chair now recognizes the gentleman from Pennsylvania,
    Mr. Murphy, for initially 3 minutes.
        Mr. Murphy. Thank you, Mr. Chairman.

       OPENING STATEMENT OF HON. TIM MURPHY, A REPRESENTATIVE IN
             CONGRESS FROM THE COMMONWEALTH OF PENNSYLVANIA

        Here is the situation: Here is coal. We have lots of it in
    this country. Unfortunately, it is dirty to burn. Whoever
    figures out how to get us from about 37 percent of efficiency
    up to 90 or 100 percent and to not have emissions wins the
    Nobel Prize and probably becomes a multibillionaire.
        But, in the meantime, one of the things that comes from
    burning coal is ash. And rather than have it float into the
    air, we have shifted to using the fly ash for recycling, which
    I prefer to just putting it into landfills, where it can have
    risks, as my friend Mr. Green pointed out. And, today, electric
    utilities recycle nearly half of the 136 million tons of fly
    ash in a wide variety of applications, as pointed out.
        Now, no one disagrees that those who violate current
    regulations should be vigorously prosecuted and held fully
    accountable. That is why I support regulating coal ash as a
    nonhazardous waste. That would empower the Environmental
    Protection Agency to impose uniform Federal requirements for
    management in States where no such standards exist. This would
    give the EPA authority to go after any site presenting a danger
    to public health and the environment.
        By the EPA's own admissions, as I understand it, whether
    the Agency chooses to regulate coal ash as a hazardous or
    nonhazardous issue, the EPA says it will be still protecting
    public health and environment.
        Now, the issue before us is whether or not a new
    classification would have an impact upon the environment and
    the economy. Our concern is that regulating coal ash under
    subtitle C of the Resource Conservation and Recovery Act would
    kill jobs and raise electric rates in Pennsylvania and other
    States. So that is something we want to see as we review this
    today and so many other areas.
        Those who are looking at this as a public health issue and
    lodged complaints about it in the air, we can now see recycled.
    So let's see what we can do about cleaning this up while also
    keeping it in a way so that we can manage this without shutting
    down the industries.
        And, With that, Mr. Chairman, I yield back to you to yield
    my time to someone else.
        Mr. Shimkus. The gentleman has 1 minute remaining. Does
    anyone like to seek 1 minute for an opening statement?
        If not, quick timing. It doesn't happen here very often.
        So I would like to recognize the Honorable Mr. Stanislaus
    from the Environmental Protection Agency.
        We appreciate you coming, sir. And you are recognized. Your
    full statement will be submitted for the record. You have 5
    minutes. And, you know, if you go--don't be pressed for time.
    This is an important issue.
        So, you are recognized now.

    STATEMENT OF MATHY STANISLAUS, ASSISTANT ADMINISTRATOR, OFFICE
    OF SOLID WASTE AND EMERGENCY RESPONSE, ENVIRONMENTAL PROTECTION
                                 AGENCY

        Mr. Stanislaus. Good morning, Chairman Shimkus, Ranking
    Member Green, and other members of the committee. My name is
    Mathy Stanislaus. I am the assistant administrator for the
    EPA's Office of Solid Waste and Emergency Response. I have the
    responsibility with respect to the coal ash proposed rule.
    Thank you for the opportunity for me to testify today on coal
    combustion residuals and H.R. 1391.
        Just a bit of background: Coal combustion residuals
    represent one of the largest waste streams generated in the
    United States, with approximately 134 million tons generated in
    2009. Coal ash residuals contain contaminants such as arsenic,
    cadmium, and mercury, which can pose threats to public health
    and the environment if improperly managed. Thus, proper
    management of these waste streams is essential to protecting
    public health and the environment.
        Just this week, I had the opportunity to meet with citizens
    from around the country to hear firsthand the impact a coal ash
    contaminant has had on their families and their communities. I
    heard about health impacts of windblown coal ash residual
    contaminants and instances of groundwater contamination caused
    by improperly designed and operated coal ash residual disposal
    units. These problems could be addressed easily if disposal
    units were installed with proper liners, groundwater
    monitoring, and a few dust controls with an effective
    government oversight framework.
        In addition, as discussed in the preamble to EPA's proposed
    rule regulating coal ash, we believe there are other issues
    that need to be addressed to ensure the protection of public
    health and the environment. This includes an effective
    oversight role to ensure that CCR regulations are properly
    implemented and enforced; a role in permitting programs so that
    all permits contain the necessary requirements to properly
    manage coal ash disposal units; and ensuring that cleanups
    associated with coal ash contamination are protective and that
    the costs of cleanup are not shifted to the general public.
        As I mentioned, EPA proposed regulations in June of last
    year for coal combustion residuals to address risks from the
    disposal of these wastes in landfills and surface impoundments
    generated from the combustion of coal, electric utilities, and
    independent power producers.
        I just want to underscore that the proposal is limited to
    the safe management of coal ash disposal, and it does not go
    beyond that. It does not seek to propose to regulate the
    beneficial use of coal ash in various other products.
        We had public comments around the country, held numerous
    public hearings around the country. We heard from close to
    15,000 people. We received 450,000 comments during the public
    comment period, and we are in the middle of going through that.
        Under the first regulatory alternative, EPA would reverse
    its May 2000 Bevill regulatory determination regarding coal
    combustion residuals and list these residuals, when destined
    for disposal in landfills or surface impoundments, as special
    waste, subject to regulation under subtitle C of RCRA, which
    would create a comprehensive Federal program that is
    enforceable via a permit-based system.
        Under the second alternative, EPA would leave the Bevill
    regulatory determination in place and regulate the disposal of
    coal ash under subtitle D of RCRA by issuing national criteria
    which would be narrow in scope and could only be enforced by
    States and private citizens.
        Under both alternatives, EPA is proposing to establish dam
    safety requirements to address the structural integrity of
    surface impoundments to prevent future catastrophic releases of
    coal combustion residuals.
        Again, it is important to note that EPA did not propose to
    change the May 2000 regulatory determination to spread to coal
    ash residuals that are beneficially used. These residuals are
    currently exempt from hazardous waste regulation. EPA continues
    to believe that the Bevill exclusion should remain in place for
    coal combustion residuals that are beneficially used in an
    environmentally sound manner because of the important benefits
    to the economy and the environment.
        Now, turning to H.R. 1391, H.R. 1391 would prohibit EPA
    from making the determination that coal combustion residuals
    should be regulated under subtitle C of RCRA. We think the
    better approach would be to consider all potential options
    based on the best science and data and what is best for the
    public health, while continuing economic growth. EPA will make
    this regulatory decision through a transparent rulemaking
    process based upon substantive data and records generated from
    extensive public comment.
        I want to emphasize that an effective regulatory program
    must address the risk from mismanagement of coal ash disposal
    units and must include a comprehensive governmental oversight,
    require disposal units to install protective units, groundwater
    monitoring, dust control, and ensure a permit program for all
    the necessary requirements to properly manage coal ash disposal
    units.
        I would also note that EPA plans to issue a notice of data
    availability in the next month or so to provide the public an
    opportunity to comment on certain information and data we have
    received during the public comment period.
        Mr. Chairman, that concludes my remarks. Thank you again
    for the opportunity to appear here today. Thank you.
        [The statement of Mr. Stanislaus follows:]
        [GRAPHIC] [TIFF OMITTED] T0732.003

        [GRAPHIC] [TIFF OMITTED] T0732.004

        [GRAPHIC] [TIFF OMITTED] T0732.005

        [GRAPHIC] [TIFF OMITTED] T0732.006

        [GRAPHIC] [TIFF OMITTED] T0732.007

        [GRAPHIC] [TIFF OMITTED] T0732.008

        Mr. Shimkus. I thank you very much for your testimony.
        I now recognize myself for the first 5 minutes of
    questioning.
        And, as I do that, I just--you really put the debate in
    perspective. But our problem is your definition of beneficial
    use. If you label an emittent as a toxic, then there is no
    beneficial use anymore. Then you have a litigation nightmare
    for all these products that I pointed out, used all over the
    country. And that is part of the dilemma.
        I want to put up a slide that I used with the administrator
    when she was appearing before us. In June 2010--I think it is
    coming sometime. Maybe it is not. And so, I am handing you a
    copy.
        In June 2010, the proposed--your coal ash rule, you said,
    ``The regulatory impact assessment for this proposed rule does
    not include either qualitative or quantitative estimation of
    the potential effects on the proposed rule on economic
    productivity, economic growth, employment, job creation,
    international competitiveness.''
        Then the President, on January 2011, issued an Executive
    Order which says, ``Our regulatory system must protect public
    health, welfare, safety, and our environment, while promoting
    economic growth, innovation, competitiveness, and job
    creation.''
        And they are up on the screen now.
        ``It must take into account the benefits and costs, both
    quantitative and qualitative.''
        Doesn't the Executive Order require you to go back and
    begin the kind of rigorous analysis, including job impact
    analysis, that he calls for before you propose any regulation
    in this area?
        Mr. Stanislaus. Well, in the RIA, we did a comprehensive
    economic analysis----
        Mr. Shimkus. No, you didn't. You state it right there. That
    is from your economic analysis. You say it doesn't. ``Does not
    include either qualitative or quantitative estimation.''
        Mr. Stanislaus. Well, I mean, we did not do a jobs
    analysis, but we did do----
        Mr. Shimkus. OK. The President says in his Executive Order
    you must do it.
        Mr. Stanislaus. Well, if I could just explain what we did
    do. We did an economic analysis which looked at the various
    costs, including the cost on electricity, the cost to----
        Mr. Shimkus. Wait, wait. But you say you didn't do it.
        Mr. Stanislaus. Well----
        Mr. Shimkus. I mean, my question is, do you have it? Can
    you forward us that information? Can you show us your analysis?
        Mr. Stanislaus. Sure.
        Mr. Shimkus. Because, based upon your statement in the
    report, you did not. And the President's Executive Order says
    you must. So we are just trying to figure out if you have done
    it.
        Mr. Stanislaus. Well, yes. I mean, we did do an economic--
    --
        Mr. Shimkus. Is it a part of the official submission of the
    report?
        Mr. Stanislaus. In the proposed rule, we did submit an
    economic analysis. We looked at both the costs and benefits of
    the rule. And, again, in terms of--we did receive a lot of
    data----
        Mr. Shimkus. OK. Well, let me put it this way. This will
    give us a great opportunity to hand this over to the O&I
    Subcommittee to do a proper investigation if we are hearing one
    thing and seeing another thing.
        Mr. Stanislaus. Well----
        Mr. Shimkus. So, all we can do is read what the EPA has
    produced for us. And we know what the President said. Part of
    our issue on jobs and the economy is, let's have science-based
    research, but let's make sure we understand the impacts on
    jobs.
        Now, again, your statement says, for this proposed rule,
    ``Does not include either qualitative or quantitative
    estimation of the potential effects of the proposed rule on the
    economic productivity, economic growth, employment, job
    creation, or international competitiveness.''
        Mr. Stanislaus. Yes, we did not do a direct jobs analysis.
    What we did do is----
        Mr. Shimkus. Well, OK, now, if you have not done a direct
    jobs analysis, are you not complying with the President's
    Executive Order? I would submit--and I would check with your
    attorneys--that you are not complying with the President's
    Executive Order.
        And I would also, then, request that we look at a way in
    which we can go back and use the instructions in which the
    President has asked to put that as part of the analysis of
    this. Because, as we see these recycled materials, if they do
    get labeled as--it will have severe impact, and we will be
    importing gypsum from China, which may have--and we already
    know it has environmental problems, versus our own gypsum-
    created wallboard.
        So this is not a small thing. I mean, this is what has a
    lot of us concerned. When I had an electric co-op testify--a
    lot of places in rural America are served by rural electric co-
    ops. They are not-for-profits. They are kind of what make rural
    America great. They projected their increase in electricity
    costs would be 25 percent to their consumers in small-town,
    rural America.
        That is why many of us were pleased with the President when
    he did this Executive Order. And we would hope that--we will
    have this debate, but let's comply with the President's
    Executive Order.
        My time has expired. I yield to----
        Mr. Stanislaus. Well, let me just quickly respond. I mean,
    we are looking at data submitted with respect to the economic
    impacts. But, in our analysis, we did also look at the
    beneficial-use industry. And----
        Mr. Shimkus. No, I understand that. But I am just going
    based upon--the President has changed course in January----
        Mr. Stanislaus. Yes.
        Mr. Shimkus [continuing]. Because of jobs, and said, we
    have to look at the jobs and economic impact.
        Mr. Stanislaus. Yes.
        Mr. Shimkus. And our concern is, that is not happening in
    the agencies yet.
        Mr. Stanislaus. And my commitment is, all economic data has
    been submitted on the record.
        Mr. Shimkus. Well, we will get----
        Mr. Stanislaus. We will evaluate that----
        Mr. Shimkus. We will get a chance to evaluate that.
        I yield now to the ranking member for 5 minutes.
        Mr. Green. I have a series of questions, but I really want
    to ask, is it--since about 45 percent of coal ash now is used,
    whether it be minefill for 8 percent or about 37 percent in
    beneficial uses, would that be prohibited under EPA's ruling,
    considering this coal ash under RCRA?
        Mr. Stanislaus. It would not be prohibited, nor are we
    seeking to regulate it. Although we are seeking comments on
    that.
        Mr. Green. Because, frankly, I think for years we have
    tried to--you know, it is great to be able to have beneficial
    uses. The Port of Houston, we found that the toxicity is not
    there so we can use it to build islands and bird islands and
    lots of things. I would like to see us raise that percentage
    for coal ash to other things so we wouldn't have to worry about
    it.
        Now let me get to my questions. The coal ash rule is a
    matter of great interest to the subcommittee and to our
    district. Unfortunately, the specific requirements of the
    proposed alternatives have not been clear. I appreciate the
    opportunity to hear directly from the agencies.
        Some have said that the subtitle C regulation would require
    disposal in a hazardous-waste landfill. Is that true?
        Mr. Stanislaus. Well----
        Mr. Green. For coal ash?
        Mr. Stanislaus. It would require a disposal under a
    disposal unit pursuant to the rule under subtitle C. That is
    right.
        Mr. Green. OK. What controls would be required for that? Of
    the over 50 percent that we can't use for beneficial uses, what
    controls would be required under subtitle C for coal ash?
        Mr. Stanislaus. Well, the controls that we have identified
    are those that ensure to prevent the mismanagement, which have
    been documented in the rule--things like a composite liner,
    things like groundwater monitoring, things like an effective
    government oversight to ensure that there is no mismanagement
    and, when there is contamination, there is cleanup of that
    contamination.
        Mr. Green. I guess I am not familiar with coal ash, coming
    from--but I have a lot of residue from some of our refineries.
    We literally have mountains of carbon that we can't burn in our
    country, and we ship it overseas.
        And would that be similar to what would be the residue from
    a refinery that is regulated? You know, I see the sprinklers, I
    see their control on it. Would that be similar, considering
    coal ash, what we have as a residue from our refinery?
        Mr. Stanislaus. Well, I can't give a direct--I mean, there
    are constituents involved, and I can't really directly answer
    that question.
        Mr. Green. Oh, oK. Are these controls more burdensome than
    what is currently required under subtitle D?
        Mr. Stanislaus. Well, our proposal envisions either a C or
    a D. And some of the differences include the ability for
    Federal enforcement, ability to have a permit program, and
    ability to have government oversight to ensure these are
    implemented in a safe way.
        Mr. Green. So right now there is no Federal regulation?
        Mr. Stanislaus. That is right.
        Mr. Green. OK. Some have said that the EPA, it finalizes a
    rule under subtitle C that the beneficial use would be
    prohibited. Is that correct?
        Mr. Stanislaus. That is not correct.
        Mr. Green. OK. If subtitle C regulation is finalized, what
    requirements or restrictions on the materials that are
    beneficially reused--would there be any requirements? Could we
    not do, you know, FlexCrete, wallboard, gypsum, or mix it with
    gypsum or any of those products that was listed up here?
        Mr. Stanislaus. We did not propose any restrictions on
    those kinds of uses.
        Mr. Green. Can you describe--I know you described the
    impact would be a lined facility and water monitoring. And do
    you require--and, again, I am not familiar with coal ash--would
    you require sprinkling to make sure it doesn't blow all over
    the place? Because I know that is what we have in other----
        Mr. Stanislaus. Well, yes, I mean, dust control is clearly
    something that we are evaluating, and we received a series of
    comments about that. So that is something we would consider.
        Mr. Green. Well, fly ash or coal ash has a lot of good
    uses, and, like I said, hopefully, working with--we can make
    those beneficial uses increase so we wouldn't have to landfill
    or dispose of it.
        And I appreciate your testimony today.
        Mr. Stanislaus. Yes, and I would just underscore, you know,
    our interest is actually to ensure the maintenance, if not
    expansion, of the beneficials industry. And I have met with
    numerous of the companies and the trade associations. I mean,
    we are very much interested in ensuring that that business
    continues. But it is a multibillion-dollar business.
        Mr. Green. Well, I have 20 seconds left. And the chairman
    provided an EPA brochure that is dated April of--oK, EPA
    approved this--from 2005. Is this the process of re-evaluating
    EPA's previous work, I assume? And this might be dated then--
    yes, this says April of 2005.
        Mr. Stanislaus. Yes, we issued a series of documents, in
    partnership with industry, about various beneficial uses.
        Mr. Green. OK.
        Thank you, Mr. Chairman.
        Mr. Shimkus. Thank you.
        And the chair now recognizes--I want to go to Joe Barton,
    chairman emeritus, for 5 minutes.
        Mr. Barton. Thank you, Mr. Chairman. I just got here. I
    would like to defer at this time.
        Mr. Shimkus. Mr. Murphy will be recognized for 5 minutes.
        Mr. Murphy. Thank you, Mr. Chairman.
        I want to be sure, Mr. Stanislaus. So you are saying that,
    whether it is under subsection C or D, you can still deal with
    some regulation issues? Whether it is hazardous or
    nonhazardous, you would still have the authority to do some
    regulations?
        Mr. Stanislaus. Well, propose regulation. I mean, some of
    the difference is, they do establish a criteria, and, you know,
    it is only enforceable by States and local citizens, whereas C,
    we would establish a comprehensive system that is federally
    enforceable to our permit program.
        Mr. Murphy. One of the issues that is of concern is the
    cost of this. What do you believe is the cost of the increased
    impact upon electricity development?
        Mr. Stanislaus. Sure. So, we estimate for subtitle C an
    increase of about 0.1, about 0.2 percent, under subtitle D
    option for electric rates nationally under subtitle D, about
    0.8 percent nationally----
        Mr. Murphy. What does that come out to in dollars per year
    for a family? Any idea?
        Mr. Stanislaus. Yes, I will get to that in a second. So,
    roughly, for subtitle C, it is about 8.84 cents per kilowatt
    hour. Which, if you break it down between residential,
    commercial, industrial: for residential, on a national average,
    about 64.4 cents per month; for commercial users, again, a
    national average, about $4.4 per month; and for industrial----
        Mr. Murphy. Per kilowatt?
        Mr. Stanislaus. No, per month. On a monthly basis.
        Mr. Murphy. Then it depends how much electricity they use.
        Mr. Stanislaus. Yes, it is based on energy information. It
    is kind of an average based on commercial users around the
    country.
        Mr. Murphy. I want to make sure we understand that. I can't
    imagine that all that you are going to do is cost someone $4 a
    month, a giant factory, whether they use things in the
    megawatts or watts for a light bulb. So I would appreciate if
    you could give us some accurate information.
        Mr. Stanislaus. Sure.
        [The information follows:]
        [GRAPHIC] [TIFF OMITTED] T0732.009

        [GRAPHIC] [TIFF OMITTED] T0732.010

        Mr. Murphy. Thank you.
        Another issue then comes up with--a lot of small business
    say that regulating coal ash as a hazardous waste, versus a
    nonhazardous waste, has a big impact on public perception of
    those products. It is in drywall. I am sure there is lots in
    this building and other buildings, and countertops, et cetera.
    But they believe it is going to create a stigma, it is going to
    ruin efforts to do this.
        So I am wondering, has EPA done a market analysis of what
    impact that would have upon purchasing or use of those
    products?
        Mr. Stanislaus. Well, I mean, we have done a lot of things
    in the proposed rule, and we saw a lot of comments. One thing
    that we did is, to the extent that stigma could exist, that is
    why we proposed it to be a special waste, to kind of
    distinguish it from--because we do kind of----
        Mr. Murphy. To call it a special waste instead?
        Mr. Stanislaus. I am sorry?
        Mr. Murphy. So label it as a special waste?
        Mr. Stanislaus. Yes. And--well, I will just leave it at
    that.
        Mr. Murphy. OK. Because what I am concerned about here is
    that we already are aware that a lot of our coal is going to
    China and India and other countries. Products are made there in
    factories and in coal-fired power plants that have little or no
    emission controls. And that is already a concern.
        Secondly, of course, the requirements for scrubbers has
    been an important way of removing emissions from the air. And I
    am concerned also about unstable landfills that could cause
    slides and disrupt communities, et cetera. But my concern
    overall is, how do we handle this the right way?
        But let me ask this. How does the toxicity of fly ash
    compare with that of cement in producing concrete? Is there a
    different comparison analysis of that?
        Mr. Stanislaus. Well, a lot of coal ash actually is used to
    make cement. And so one of the things that we look at in
    analyzing the risk of beneficial use is look at both how it is
    used but look at comparable constituents that the coal ash
    would displace.
        And I should also note that there are numerous compounds
    which are listed under subtitle C that have, in fact, been
    recycled significantly. I can provide to you a list of all of
    those compounds.
        [The information follows:]
        [GRAPHIC] [TIFF OMITTED] T0732.011

        [GRAPHIC] [TIFF OMITTED] T0732.012

        Mr. Murphy. That is important. I mean, I want to make
    sure--look, we are all concerned with clean air, land, and
    water. But I want to make sure that we have accurate
    information here and we are not simply exporting a problem to
    have it reimported in the air and in products. And this is
    where I really look to the EPA to be a solid science but also
    do a solid economic analysis for us, too, if we are just
    exporting and reimporting here.
        Do you plan to seek a hazardous waste designation for
    municipal wet landfills, that there is also some of these
    products in landfills too?
        Mr. Stanislaus. We are not pursuing that at the moment.
        Mr. Murphy. OK. With regard to this, do you think States
    are doing a good job? Or do you have some concerns about how
    the States are managing some of these issues now?
        Mr. Stanislaus. Well, we clearly have identified in our
    proposal, there is a mismanagement in circumstances. There have
    been documented damages from that mismanagement, including
    documented damages to groundwater. So those are the reasons
    that we are pursuing this proposal.
        Mr. Murphy. Well, were some of the ratings that you gave
    because they were unsafe, or does it have to do with some other
    engineering documentation required? I mean, I am curious what
    these ratings that you talk about are from.
        Mr. Stanislaus. I am sorry----
        Mr. Murphy. When you reviewed--for example, there is a
    statement here: ``The poor ratings were given because those
    units lacked some of the necessary engineering and
    documentation recording the assessments and not because the
    units are unsafe.'' This is from a release from the EPA, I
    believe.
        Mr. Stanislaus. So there are two major risks that we are
    looking at. One is catastrophic failure. And so we have done--
    --
        Mr. Murphy. That is in the landfill and dams.
        Mr. Stanislaus. That is the dams. And so, the Kingston is
    the most recent event. So we are trying to prevent catastrophic
    failures like that.
        Separately, we are looking at leaching of various metals,
    arsenic, for example, from mismanaged coal ash impoundments.
        Mr. Murphy. So the difference is the safety of dams and
    landfills versus recycled products. You are looking at those in
    a different way.
        Mr. Stanislaus. Yes. All we are seeking to do is ensuring,
    where it is disposed, that it is disposed safely. So, prevent
    catastrophic failure and prevent leaching of the various
    constituents found in coal ash.
        Mr. Murphy. Thank you.
        Thank you, Mr. Chairman.
        Mr. Shimkus. Thank you.
        The chair now recognizes the chairman emeritus, Mr.
    Dingell, for 5 minutes.
        Mr. Dingell. Thank you, Mr. Chairman.
        I would like to make a comment. It seems like we have a
    problem here, but it seems like we have the wrong cure.
        I hope my colleagues were listening to the remarks made by
    my friend from Texas, Mr. Green, because I get the distinct
    impression that our problem here is whether we regulate under
    subtitle D or subtitle C. And it is clear that we have a
    problem that is going to require some sort of improvement in
    regulation.
        Am I correct on that, Mr. Stanislaus?
        Mr. Stanislaus. That is right.
        Mr. Dingell. OK. So do you have the authorities you need to
    regulate the ponds that seem to have brought us to this point?
    In other words, you had a great big break in a pond that
    flooded everybody out with a nasty mess. Do you have the power
    to regulate that?
        Mr. Stanislaus. Well, I mean, we proposed a rule to do the
    best under the current legal framework----
        Mr. Dingell. But the industry doesn't want this stuff
    classed as hazardous, because that will reduce the possibility
    of it being used for useful purposes like drywall and cement
    and plaster and other things that might be valuable. I think
    that is something to which we should look.
        So if we gave the industry the authority that is needed to
    simply regulate the ponding, we would have pretty well abated
    the problem. Isn't that right?
        Mr. Stanislaus. Well, I mean, clearly----
        Mr. Dingell. Yes or no?
        Mr. Stanislaus [continuing]. The major issue is coal ash
    impoundments and landfills. So----
        Mr. Dingell. OK. But we don't want to landfill this because
    it is a waste of a valuable resource and uses space and all
    other manner of things. Am I correct in that?
        Mr. Stanislaus. Yes.
        Mr. Dingell. OK. So I think, then, that if we don't have to
    change it to be either subtitle D or C, all we have to do is
    just give the EPA the authority to regulate the ponding. Is
    that right? And to do so in concert with the States, allowing
    the States to do so, but under EPA regulations. Does this make
    sense? Yes?
        Mr. Stanislaus. Yes.
        Mr. Dingell. OK. Because the reporter doesn't have a
    ``nod'' button on her machine.
        So I think, then, that you would say you agree and EPA
    generally agrees that we should simply address the question of
    ponding. Does that solve the environmental problems or does it
    solve the political problems that we find ourselves affronted
    with?
        Mr. Stanislaus. Well, clearly, we need to identify the
    specific items we have identified in the proposed rule, things
    like----
        Mr. Dingell. Your big problem is you have ponding that is
    not being well done; you have a potential large risk to the
    population, right?
        Mr. Stanislaus. Yes.
        Mr. Dingell. OK. So if we control that, we have dealt with
    much of the problem. Is that right?
        Mr. Stanislaus. That is right, the disposal that is a
    problem, yes.
        Mr. Dingell. So how much more needs to be done, other than
    addressing the ponding problem?
        Mr. Stanislaus. Yes, I mean, it is the disposal problem in
    providing us----
        Mr. Dingell. I recognize that. But we are trying to sort
    out what the difficulty here is. And I find that there is a
    ponding problem. I don't see that we need to get into a fight
    over C or D, but I do see that we need to address that.
        Now, what other things are there that we need to address in
    order to solve the problem and to get an agreement here in the
    committee that we can go forward with, that makes sense to us
    all?
        Mr. Stanislaus. Well, it depends under what authority----
        Mr. Dingell. Dear friend, you know, Harry Truman one time
    talked about he hoped he met a one-handed economist. And
    everybody said, why do you want to meet a one-handed economist?
    And he said, because the damned economists are always saying
    ``on the right hand'' or ``on the left hand.'' All I want is an
    answer.
        Now, what other things do we have to do here to resolve the
    problem? My time is running. I got 56 seconds. I am going to
    let you try to respond, but I hope you can do it within the 51
    seconds that remains.
        Mr. Stanislaus. Sure. To have an effective program, we need
    to have a permitting system, to have effective oversight, and
    some basic requirements like groundwater monitoring for that
    disposal.
        Mr. Dingell. Traditionally, this committee has asked for
    drafting service. Will you submit to us your specific
    recommendations on what we do to address this problem in a
    fashion that enables EPA to do the things that have to be done,
    so we can get this problem out of our hair, solve the
    difficulties of the people, let you folks do your business,
    make the States happy, and go about our business dealing with
    the other big problems?
        And, Mr. Chairman, I want to commend you for having this
    hearing because this is a very useful exercise. And I
    appreciate your leadership on the matter.
        Please get me the answers to those questions.
        And thank you very much, Mr. Chairman.
        Mr. Stanislaus. I will do so.
        [The information follows:]
        [GRAPHIC] [TIFF OMITTED] T0732.013

        [GRAPHIC] [TIFF OMITTED] T0732.014

        Mr. Shimkus. Thank you, Mr. Dingell. I look forward to
    working with you on this.
        And now I would like to recognize Chairman Emeritus Barton
    for 5 minutes.
        Mr. Barton. Thank you, Mr. Chairman. And I want to thank
    you also for allowing me to defer my questions, but I
    appreciate being able to do it now.
        I want to associate myself with most of what Chairman
    Dingell said. I do substantively agree with his logic that we
    have a pond problem, perhaps, or impoundment problem. The coal
    ash itself I don't believe is a hazardous waste problem.
        I do appreciate you being here. We have had a little
    trouble, apparently, getting the right telephone number or e-
    mail address at EPA. So somehow we got you to come, and we give
    you at least one star for showing up. That is a good thing.
        Mr. Stanislaus. I only get one?
        Mr. Barton. Well, depending on how you answer my question.
    Be lucky you are getting one. I don't give out many stars to
    the EPA.
        Are you a policy maker at the EPA or a policy implementer
    at the EPA?
        Mr. Stanislaus. I would say both.
        Mr. Barton. Both. OK. Good. I am told that Chairman Shimkus
    asked some questions about the economic analysis or economic
    impact statements. You have seen this little handout that the
    EPA says that does not include either qualitative or
    quantitative estimation. And then, of course, the President's
    Executive Order that says it must be taken into account.
        There seems to be some confusion about just what, if
    anything, has been done in terms of an impact analysis. Do you
    have a work product that can be shown publicly?
        Mr. Stanislaus. Sure. And I can just quickly go through the
    numbers. I will provide a more comprehensive information.
        The economic analysis looked at both the impact of cost and
    the benefits. So, for example, the impacts on the utilities,
    impacts on the States, as well as the benefits from avoided
    groundwater impacts, avoided catastrophic failures. And I could
    quickly go through numbers of C and D, if you would like for me
    to do that right now.
        Mr. Shimkus. Would the gentleman yield for just a second?
        But my understanding on this analysis, there is nothing
    about jobs, effect on jobs. And I would encourage you to sit
    through the next panel and listen to the next panel testify
    about the impacts on jobs. You might be enlightened.
        I yield back.
        Mr. Barton. Well, point one is you say you have now done
    one, which seems to be a step forward. If you could just
    provide that to the committee staff on both sides, so we could
    take a look at it, and then we will probably have some follow-
    up questions.
        I would assume the bottom line of that analysis is that
    this rule is the greatest thing since sliced bread and it needs
    to be implemented immediately to protect public health and
    safety, because if it doesn't, we are going to be inundated in
    a tsunami of coal ash waste.
        Am I far off the mark on that?
        Mr. Stanislaus. I mean, we do propose two options, and we
    identify the costs and benefits of both options in the rule.
    And we also received lots of economic data during the public
    comment period that we are sifting through now, and we are
    going to reanalyze it based on that and make the most informed
    judgment, balancing public health protection and economic
    consequences.
        Mr. Barton. Well, do you, as an EPA official, agree with
    what Chairman Dingell said, that coal ash waste does have
    beneficial uses?
        Mr. Stanislaus. Oh, absolutely.
        Mr. Barton. OK. And there are these products that we have
    been passing around, that they are useful. And so would you
    agree on the record that it would be a good thing if we could
    find our way clear to make sure that those types of uses
    continue to be an option?
        Mr. Stanislaus. Oh, absolutely. And we would--I have met
    with the industry numerous times, and we want to do it,
    separate from the rule, because we are not actually proposing
    to do anything with beneficial use, but also more proactively
    work with the industry, as we have sought to do for many years.
        Mr. Barton. OK. Now, this is actually a legislative
    hearing, so we have a proposed Federal law. What is EPA's main
    objection to the pending bill?
        Mr. Stanislaus. Well, it is that we want to make the most
    informed judgment based on all the data on the record, and
    ensuring that the rule that best provides public health
    protection as well as ensuring the economic benefits are
    maintained is done. And so, by this, it would remove that one
    option and not allow us to more fully make a decision based on
    all the data and all the 450,000 comments that we have
    received.
        Mr. Barton. My time is about to expire. But going back to
    Chairman Dingell's original presentation, wouldn't it be better
    to work with the States to come up with a pond impoundment
    improvement program? Isn't that the problem? The problem is not
    the coal ash itself. The problem is that some companies
    apparently didn't maintain their impoundment mechanisms
    correctly and we had a failure. I mean, that is the primary
    problem. Don't you agree?
        Mr. Stanislaus. Well, I agree. And I believe the States are
    a very strong partner and a lead regulator on this. And I think
    the intention is really to have a national framework for this
    to be done safely.
        Mr. Barton. OK. Thank you.
        Thank you, Mr. Chairman.
        Mr. Shimkus. Thank you.
        The chair now recognizes Chairman Emeritus Mr. Waxman for 5
    minutes.
        Mr. Waxman. Thank you very much.
        Mr. Stanislaus, I appreciate your being here today.
        EPA has made two alternative proposals to address the safe
    disposal of coal ash. The Agency could regulate it under
    subtitle C of RCRA. Alternative, they could act under subtitle
    D. The purpose of the legislation we are examining today is to
    ensure that EPA does not regulate the safe disposal of toxic
    coal ash under subtitle C. I would like to explore with you
    some of the differences between regulating these wastes under C
    as opposed to D.
        If the EPA finalizes a regulation for coal ash under
    subtitle C, there would be a minimal standard for the safe
    disposal of toxic coal ash that would apply consistently in
    every State. The practice of coal ash impoundments would be
    discontinued and safe disposal would be federally enforceable.
    Is that correct?
        Mr. Stanislaus. That is correct.
        Mr. Waxman. If the EPA finalizes a regulation for coal ash
    under subtitle D, will States be required to adopt or implement
    those requirements?
        Mr. Stanislaus. No.
        Mr. Waxman. Would a regulation under subtitle D be
    federally enforceable?
        Mr. Stanislaus. No.
        Mr. Waxman. Would subtitle D regulation ensure that all
    States meet some minimal level of protection?
        Mr. Stanislaus. No, the State would not have to pick up the
    requirements.
        Mr. Waxman. Under subtitle D, there would be no required
    State action; there would be no federally enforceable
    requirements. States would have complete discretion to
    implement the requirements or not, as they see fit.
        Can you explain to us how this approach to regulating coal
    ash under subtitle D would compare with the authority EPA has
    to regulate municipal solid waste under subtitle D?
        Mr. Stanislaus. Yes. The municipal authority would permit
    EPA, as it has in the past, to review and approve the municipal
    solid waste program. And we don't have that authority with
    respect to coal ash under, currently, D.
        I should also note that, even under municipal solid waste,
    there is no enforcement authority by EPA.
        Mr. Waxman. EPA has more authority to deal with municipal
    solid waste than it would for coal ash.
        Mr. Stanislaus. Under D, that is correct.
        Mr. Waxman. So if EPA acts under subtitle D, the EPA would
    have more authority over household garbage than it would have
    over coal ash?
        Mr. Stanislaus. The way it is currently structured, that is
    right.
        Mr. Waxman. It is incorrect to consider subtitle D
    regulation as roughly equivalent to subtitle C regulation. It
    is not equivalent. It will not create Federal or State
    enforcement of necessary public health and environmental
    protections.
        Thank you, Mr. Chairman. I yield back the balance of my
    time.
        Mr. Shimkus. And I thank you.
        The chair now recognizes my colleague from Kentucky, Mr.
    Whitfield, for 5 minutes.
        Mr. Whitfield. Thank you very much.
        And thank you for being with us today.
        How long have you served as assistant administrator of EPA
    for this area?
        Mr. Stanislaus. I have been in the office since June 2009.
        Mr. Whitfield. 2009. And where were you prior to that?
        Mr. Stanislaus. Well, I was with a brownfield development
    organization in New York City.
        Mr. Whitfield. Uh-huh. Since you have been at EPA, has
    there ever been a situation where, on a proposed regulation,
    the cost of the regulation exceeded the benefits of the
    regulation?
        Mr. Stanislaus. Well, it is clearly something that we look
    at in all our rules before we even finalize that. So we would
    not propose a rule where the cost exceeds the benefits.
        Mr. Whitfield. Could you give us a list of those
    regulations that you have considered and have realized that the
    costs exceed the benefits?
        Mr. Stanislaus. Yes. I mean, I can't--since my time, I
    can't think of one right--we are in the middle of lots of
    rulemaking. I can't think of----
        Mr. Whitfield. Can you think of one?
        Mr. Stanislaus. Not right now, but I can get back to you.
        Mr. Whitfield. Yes, I would like for you to.
        Mr. Stanislaus. OK.
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        Mr. Whitfield. The reason I am asking the question, I
    recently read a Law Journal article on the formula being used
    determine costs versus benefits. And this Law Journal article,
    University of Michigan Law Journal article, is very critical of
    the analysis and it was so subjective in so many ways. So, we
    get the impression up here that it is very easy to show that
    benefits outweigh costs. And so I really would appreciate if
    you would get us an example of one regulation that you
    considered in which the benefits did not outweigh costs and you
    all decided not to implement it.
        Mr. Stanislaus. During my time or just generally within
    EPA?
        Mr. Whitfield. No, during your time. I want you to give
    me----
        Mr. Stanislaus. OK. I am not sure. I will go check.
        Mr. Whitfield. OK. All right. But you are not aware of any.
        Mr. Stanislaus. Yes, I am not aware at this moment, yes.
        Mr. Whitfield. OK. Now, under the Bevill amendment, I think
    you said 1993-2000, EPA determined that coal ash was not a
    hazardous waste. Is that correct?
        Mr. Stanislaus. Yes, that we would not regulate it under C
    at that time. Yes.
        Mr. Whitfield. All right. And now you decided that you
    should regulate it under C?
        Mr. Stanislaus. No. We are still deliberating on that. We
    have co-proposed to regulate it under C or D.
        Mr. Whitfield. OK. But has your scientific evidence showed
    that it is a hazardous waste?
        Mr. Stanislaus. Well, the evidence shows that there has
    been damages from the mismanagement of coal ash disposal.
        Mr. Whitfield. OK, there have been damages. But is it a
    hazardous waste, in and of itself?
        Mr. Stanislaus. Well, I mean, we are still deliberating on
    that. And the difference is that, because of the various
    damages, what is the best tool to deal with the damages and
    ensure mismanagement doesn't happen? And that is what we are
    currently deliberating on.
        C provides certain kinds of tools, like Federal standards,
    Federal enforceability of permit programs and oversight, that
    is a tool that we need to examine, along with----
        Mr. Whitfield. So you are focusing a lot of damages,
    primarily.
        Mr. Stanislaus. Well, the environmental impact, as well as
    the economic consequence of----
        Mr. Whitfield. So, do damages have to be at a certain level
    for something to be classified as a hazardous waste?
        Mr. Stanislaus. Well, again, we have not classified it as a
    hazardous waste, and I----
        Mr. Whitfield. I am just asking theoretically. Do damages
    have to be considered to determine something as a hazardous
    waste?
        Mr. Stanislaus. For consideration of subtitle C,
    absolutely, we have to look at the total damages, the science
    underneath that, the various constituents, the impact to public
    health.
        Mr. Whitfield. Now, in your testimony, you said 130 million
    tons of waste is generated by coal-fired plants, correct?
        Mr. Stanislaus. That is right.
        Mr. Whitfield. Now, I read that 16,349 hazardous waste
    generators generated 47 million tons of hazardous waste last
    year. And the issue from some of the testimony of our other
    witnesses indicates that the capacity to take the amount of
    waste that would be having to be disposed of if you proceed
    with these regulations, that the capacity is not there to store
    it.
        Mr. Stanislaus. Well, it is certainly something we are
    looking at, in terms of capacity and the States.
        Mr. Whitfield. But, in your view, isn't the capacity there
    to take care of it?
        Mr. Stanislaus. Clearly, new capacity is going to be
    necessary to comply with the rule.
        Mr. Whitfield. How much new capacity?
        Mr. Stanislaus. I will get back with the specific numbers.
    I will have to get back with you.
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        Mr. Whitfield. When do you anticipate you will make a final
    determination on this regulation?
        Mr. Stanislaus. Certainly not this year. We are currently
    sifting through 450,000 comments. So sometime next year.
        Mr. Whitfield. OK, I see my time is about expired. Thank
    you.
        Mr. Shimkus. The gentleman yields back his time.
        The chair recognizes the gentleman from Georgia, Mr.
    Barrow.
        Waives.
        The chair now recognizes the gentleman from Pennsylvania,
    Mr. Pitts, for 5 minutes.
        Mr. Pitts. Thank you, Mr. Chairman.
        Mr. Stanislaus, do you plan to seek a hazardous waste
    designation for municipal solid waste landfills?
        Mr. Stanislaus. No, we are not pursuing that at the moment.
        Mr. Pitts. Do you feel the States are doing a pretty good
    job of regulating municipal solid waste landfills?
        Mr. Stanislaus. Yes, I mean, we have reviewed the--well, we
    previously approved their plans, and so--but we are constantly
    engaged with the States on this issue.
        Mr. Pitts. How do human health risks from municipal solid
    waste landfills compare to those with coal ash landfills?
        Mr. Stanislaus. Well, I have not done a direct comparison.
    I am not sure we have that. But we have documented the specific
    risk from coal ash mismanagement and the need to address that.
        Mr. Pitts. How does the toxicity of fly ash compare to that
    of Portland Cement, which it replaces in producing concrete,
    for instance?
        Mr. Stanislaus. The direct toxicity? Again, I am going to
    have to get back to you on that.
        Mr. Pitts. Do you have any opinion on the toxicity of
    synthetic gypsum compared to mined gypsum, which it replaces in
    manufactured wallboard?
        Mr. Stanislaus. Well, I can get back to you on the
    specifics, but they are fairly comparable in terms of the
    constituents found in both, so--in terms of what is contained
    in either mined or synthetic.
        Mr. Pitts. How about the toxicity of coal ash compared to,
    say, household garbage?
        Mr. Stanislaus. Well, again, I don't have a direct
    comparison. But, again, there are constituents in coal ash, if
    mismanaged, that do cause a risk. But if it is managed well,
    like beneficial use in a brick, for example, or wallboard, it
    can be done very safely.
        Mr. Pitts. OK. Back to landfills, do you disagree with the
    States that landfill capacity will be wiped out in less than 2
    years if EPA makes their subtitle C proposal final?
        Mr. Stanislaus. I have not looked at that comment. I mean,
    I believe that is a comment on the record. We will look at
    that. I mean, we don't believe that specifically is the case,
    but we will look at--we are looking at the capacity of C,
    disposal units in States.
        Mr. Pitts. As head of the waste office, do you have any
    plans for streamlining permitting to ensure new landfill
    capacity, if you create the EPA's subtitle C designation?
        Mr. Stanislaus. Well, clearly, our interest is to have a
    very streamlined program, not just within C but throughout. And
    as part of the President's regulatory review, we are looking at
    numerous opportunities to streamline and bring efficiencies to
    our programs.
        Mr. Pitts. OK. Another question on coal ash: Does coal ash
    qualify as a hazardous waste based on its toxicity pursuant to
    RCRA-mandated TCLP, the test?
        Mr. Stanislaus. That is clearly something we are doing. And
    I should note that our proposal is to designate as a special
    waste, not a hazardous waste, because that distinguishes it
    from the disposal concern that we are seeking to address.
        Mr. Pitts. Expand on that, please.
        Mr. Stanislaus. Sure. One, there are other compounds
    because of the inherent nature that are listed as a hazardous
    waste. We felt in this case, both because if there is a
    perception of stigma, we wanted to kind of distinguish it from
    wastes that are inherently hazardous. So we are only seeking to
    address the disposal of it. So that is why we proposed to
    designate it as a special waste and to include all of the tools
    within C, like government oversight and permitting program.
    Does that answer your question?
        Mr. Pitts. Yes.
        Mr. Shimkus. [Presiding.] Will the gentleman yield?
        Mr. Pitts. Yes.
        Mr. Shimkus. So I hear you. I mean, I think that is kind of
    the direction a lot of us know that we need to go. But what you
    are not saying is when you identify it as a special waste, will
    that be under subtitle C as a toxic waste?
        Mr. Stanislaus. It will definitely be under subtitle C.
        Mr. Shimkus. OK. Well, then we are not going that way.
        Mr. Pitts. I yield back.
        Mr. Shimkus. The chair now recognizes the gentleman from
    Louisiana, Mr. Cassidy, for 5 minutes.
        Mr. Cassidy. Hello, Mr. Stanislaus.
        Mr. Stanislaus. Hi.
        Mr. Cassidy. I know just enough to be terribly confused,
    oK? And I am between two committee hearings, so I apologize if
    you have already answered some of this.
        I gather that the principal problem is groundwater
    contamination with trace elements which are hazardous,
    selenium, cadmium, whatever. I also gather that this--I think I
    have a CRS report here that says, that kind of describes the
    sort of lining that appears--the composite liner, upper
    component of flexible membrane, 2 feet of compacted soil
    beneath that. And that truly seems effective at limiting
    groundwater contamination.
        Mr. Stanislaus. That is what we propose, exactly.
        Mr. Cassidy. So why not just do that under section D,
    subtitle D? I mean, if this is what is required, and we know
    this works, you can go out and inspect and make sure that it is
    working, do some groundwater pre-and post-testing. Why not just
    do that under subtitle D? I guess that is my confusion.
        Mr. Stanislaus. Yes, we did propose those technical
    requirements under D. There are some differences between D and
    C. As an example, a permit program and government oversight, so
    there are some differences. I mean, D does not require States
    to pick it up. So States are not required to modify their
    program to be consistent with D. So the enforcement of D is
    either by States or by private citizens groups.
        Mr. Cassidy. Now--oK. Does D include groundwater testing?
        Mr. Stanislaus. D would--as a criteria, it would be one of
    the components of the criteria; that is right.
        Mr. Cassidy. Of D.
        Mr. Stanislaus. Of D and C.
        Mr. Cassidy. So if we are really concerned about
    groundwater testing, I would like to think that States are
    responsible enough that they don't want cadmium, or whatever
    the trace element is, in their groundwater. And if we know that
    that testing would be in place, does EPA--implicit in this is
    that EPA feels the States won't do a good enough job. Is that a
    fair statement?
        Mr. Stanislaus. Well, no. I mean, we want to have a scheme
    that--again, we have not made a determination of whether a C or
    D. We want to be--and one of the sets of data that we have
    asked, and we have asked for the States, we are in constant
    engagement with the States, is what is the best framework for
    doing this? D set the criteria that is effectively what I would
    characterize as staff implementing. So it is up to the
    companies to kind of implement that. And so the enforcement and
    oversight is a real kind of key component to ensure safe
    management of disposal.
        Mr. Cassidy. And not just the companies to implement, but
    also puts a burden upon the States to ensure implementation,
    correct? I mean, the States, once they know it is a health
    hazard, theoretically States don't want their groundwater
    contaminated, so theoretically States are going to act in the
    best interest of their citizens, just as the Federal Government
    is going to, theoretically, act in the best interest. And as a
    Republican, of course, I would like to give more responsibility
    to the States than to the Federal Government.
        But again, I go back to this implicit--it seems as if you
    are a little concerned that the States may not be up to the
    responsibility.
        Mr. Stanislaus. No. Either way the States would have lead
    responsibility under C or D.
        Mr. Cassidy. OK. But D--but C would have a bigger role for
    EPA, if you will, the oversight of the States' oversight.
        Mr. Stanislaus. Yes. So EPA would ensure that the States
    comply with these requirements. But ultimately, the goal is to
    have the States run the program.
        Mr. Cassidy. OK. Now, allay my fears. My city, I represent
    the metropolitan area. Louisiana, Baton Rouge, has been under a
    nonattainment for quite some time. We can't build out our
    industry because we are under nonattainment, so we can't create
    jobs by plant expansion, if you will. We are under Region 6.
    And I am told by credible sources that they have been sitting
    on our application for 3 or 4 years; that we are not getting
    our application to be under attainment processed in a quick
    way. Of course, the cost is jobs. No explanation given, just
    not processing.
        So I guess my concern is that whenever the EPA is giving
    oversight, ultimately it means that they really control the
    process. Is it possible that--of course, it is possible--but
    how would you address the concern that once you have oversight
    of the oversight, and you have the ability to yank the permit
    or to grant the permit, that it would be that same sort of
    bureaucratic Kafkaesque scenario where jobs aren't being
    created, energy costs are going up merely because somebody in
    Region 6 has decided not to process an application?
        Mr. Stanislaus. Clearly, that is not our interest. And the
    history of the C program is that we review, approve, and plan
    to get out of the way for the States to kind of execute that
    program. So while we retain oversight; but the real goal is to
    have the States execute the program, as we have done in other
    programs under C.
        Mr. Shimkus. The gentleman's time has expired. Kafkaesque.
    That is pretty impressive for someone from Louisiana. The chair
    now recognizes the gentleman from Ohio for 5 minutes.
        Mr. Latta. I thank the chairman. And Mr. Assistant
    Administrator, thanks for being with us today. As you can see,
    I represent the Fifth District in Ohio. And Ohio is dependent
    heavily on coal for our generation. And I also--I am going to
    throw in my friends, just to my west in Indiana, because my
    district runs down the Indiana line, so we have a lot of folks
    that work in Indiana, or vice versa, Indiana working in Ohio.
    So when we have over 80 percent of our power coming from coal,
    Indiana estimated over 90 percent is coal-generated.
        My concerns go back to what the chairman was talking about
    a little bit earlier, especially on the jobs side. And I would
    like to ask you a couple of questions, if I may, first on how
    when EPA was looking at this, did you look at how high the
    electricity rates could rise for the States like Ohio and
    Indiana that are dependent on that coal for producing not only
    that electricity, but that is what turns on those machines at
    those factories that create those jobs and our States are
    retaining those jobs in our States?
        Mr. Stanislaus. Yes, we looked at all the costs. And I
    could break down again the electricity costs, but we did look
    at the potential impacts for electricity, assuming the utility
    passes on 100 percent of the cost to the utility customer. And
    I could provide on the record, I could go back over that. But
    we did look at both on a national average and individual State-
    by-State basis.
        Mr. Latta. OK. Do you have any of those statistics with you
    today?
        Mr. Stanislaus. Yes. I could----
        Mr. Latta. Like for Ohio, for instance; where would you see
    those costs?
        Mr. Stanislaus. Let me see if I can quickly find Ohio. I am
    going to have to get back to you on Ohio.
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        Mr. Shimkus. If the gentleman willl yield just one second
    on that.
        Mr. Latta. I yield.
        Mr. Shimkus. The point being, rates will relatively stay
    unchanged, but you are not including the cost of the waste, new
    regulations under subtitle C, the disposal of now twice as much
    material. That is a burden of cost, and that is why that
    economic eval that the President has directed, that is why that
    is important, because it needs to be comprehensive, not just a
    basic thing of what happens to rates because--anyway, I will
    yield back to my friend.
        Mr. Stanislaus. Just to be clear, we did include all the
    costs----
        Mr. Latta. Thank you very much, Mr. Chairman. Because under
    the Electric Power Research Institute, which is not an advocacy
    organization, it points out that a lot of the cost factors that
    EPA omitted from its electric rate impact analysis, the EPRA
    says the proposed coal ash disposal regulations will cost three
    to four times more than your estimate. And that goes back to
    what the chairman is saying. And, again, these costs that drive
    the businesses out of our States.
        And I know how bad it is getting because in Ohio we are
    going to lose two Members of Congress this time around, because
    we have got folks that are leaving the State, going to other
    States to find jobs, and our kids are leaving. And I think
    those are the things that we really need to know is just not
    the rate, but you know, all of the impact it is going to have
    on our States.
        If I could move on to another question. In your testimony,
    just to make sure I understand, on page 4 and then also page 5,
    could you define ``encapsulated'' and ``unencapsulated''
    because you say that encapsulated, you are talking about
    concrete or wall board. Now when you are talking about
    concrete, is that in the dry form or in the final form that it
    is actually after it has been made?
        Mr. Stanislaus. Yes, it is the final form.
        Mr. Latta. OK. So the powdered form would be the
    unencapsulated, correct?
        Mr. Stanislaus. No. We got in addition to the final
    product, so there are some benefits to uses that are not
    essentially solid in its final form. So we do go through that
    distinction about--certain stakeholders have raised concerns,
    and we are doing some research on certain unencapsulated that
    we are doing more research on. So we don't have concerns or
    insignificant concerns of like, for example, concrete; because
    these constituents are kind of embedded in that final form, and
    we don't believe there are issues that----
        Mr. Latta. OK, again, pardon me for interrupting. You are
    referring then to concrete after it is set, not in the pallets.
    OK. Because there are contexts that there are individuals,
    companies, et cetera, that aren't going to touch this anymore,
    because they are going to say, We don't want to to be held
    liable if all of a sudden down the road this is going to be
    held as something that is hazardous, and then all of sudden we
    are going to be responsible for tearing something up or being
    sued.
        So I think it is very, very important on these definitional
    phrases when you are talking about encapsulated and
    unencapsulated, because if we are talking about concrete in two
    different forms, that is going to have a lot of people very,
    very concerned.
        Mr. Stanislaus. Yes. Just to be clear, we are not proposing
    to regulate beneficial use at all in the proposal. The proposal
    is limited to just disposal and kind of the impoundments and
    landfill scenarios. We did see comments on is there anything
    else that we should be doing. But we have not proposed to
    address any form of beneficial use at the moment.
        Mr. Latta. Mr. Chairman, my time has expired and I yield
    back.
        Mr. Shimkus. The gentleman yields back his time. The chair
    now recognizes the gentleman from Colorado, Mr. Gardner.
        Mr. Gardner. Thank you, Mr. Chairman. Thank you for joining
    us today.
        And I want to go back to a series of questions that you
    answered with the chairman regarding economic analysis. You
    stated in later questioning that the EPA would not propose a
    rule where the costs exceed the benefits. Earlier though, you
    said that--and you said that you did an economic analysis, but
    that economic analysis did not do a jobs analysis. Is it
    standard procedure for an economic analysis to ignore the
    impact on jobs?
        Mr. Stanislaus. Well, we didn't do a direct analysis, and
    again we sought----
        Mr. Gardner. So you did not do a direct economic analysis.
        Mr. Stanislaus. No, no. We did a direct economic analysis
    of various potential costs that we have identified, which
    includes cost of compliance by the utility sector, the cost to
    the States, as well as various benefits
        Mr. Gardner. But not a cost on jobs.
        Mr. Stanislaus. Not directly.
        Mr. Gardner. So you did do a cost on jobs, then,
    indirectly?
        Mr. Stanislaus. Well, we just looked at the direct cost
    from complying with the rule
        Mr. Gardner. So you did or you did not do jobs?
        Mr. Stanislaus. Not. No
        Mr. Gardner. So is it standard procedure, then, for an
    economic analysis to not include jobs?
        Mr. Stanislaus. Well, I can get back to you on the specific
    details of how we do economic analysis. We do economic analysis
    based on the direct consequence of our rule
        Mr. Gardner. So you don't think your rule would have direct
    consequences on jobs?
        Mr. Stanislaus. Well, we did an analysis of various costs
    of that, and clearly we are cognizant of the economic
    consequence of our rule
        Mr. Gardner. So it does have an economic consequence.
        Mr. Stanislaus. Sure. But we looked at both the cost and
    benefits of the rule.
        Mr. Gardner. But you didn't look at jobs.
        Mr. Stanislaus. Not directly, no. So we looked at, for
    example, the impact on the utility industry.
        Mr. Gardner. So there is no impact on the utility industry
    on jobs?
        Mr. Stanislaus. Well, we didn't do that direct analysis.
    There is an impact on cost to the utility industry, and that
    translates to potential increase, as I had noted earlier, some
    rise in utility rates
        Mr. Gardner. So do you believe, then, that an economic
    analysis that fails to show the full picture on jobs, is that
    an adequate economic analysis?
        Mr. Stanislaus. Well, we think we did a comprehensive
    analysis of economic--the total cost of economic, the cost and
    benefits. But clearly we received a lot of data on various
    forms of economic analysis that we are looking at it very hard
    right now.
        Mr. Gardner. So let me just ask that question, then. I
    think it is a ``yes'' or ``no'' answer. Do you believe that an
    economic analysis that fails to show the impact on jobs, is
    that a complete economic analysis?
        Mr. Stanislaus. Well, clearly we all, you know--and the
    President has made that commitment. We have to look at job
    consequence for everything we do
        Mr. Gardner. So then the answer is ``no.'' It is an
    incomplete economic analysis.
        Mr. Stanislaus. Well, I think the economic analysis as part
    of every rule is going to differ. And I can get back to you on
    the reasons.
        Mr. Gardner. Well, I just would like to know. Is it the
    EPA's position that an economic analysis that fails to take
    into account jobs, is that a complete economic analysis? I
    mean, I don't see how you can talk about economic analysis
    without talking about jobs.
        So I guess I would like to know--and you said that you
    would not propose a rule where the costs exceed the benefits.
    But if you are not taking into account jobs, I just don't see
    how that goes. What other rules has your office or the EPA
    promulgated that hasn't focused on jobs or taken into account
    jobs?
        Mr. Stanislaus. Well, I mean, I will get back to you on the
    rules.
        Mr. Gardner. I would like to see a list of all the rules
    you have proposed that haven't taken into account jobs. And
    then the Executive Order that was issued, will you ask for a
    review under the lookback provisions of the Executive Order so
    that it does take into account the effect on jobs?
        Mr. Stanislaus. Well, clearly we would look at any job
    consequences.
        Mr. Gardner. But you haven't. And you said you won't, and
    you didn't.
        Mr. Stanislaus. Well, you know, as I explained earlier, we
    have to look at the direct consequence of the rule. And so to
    the extent that there are direct job consequences, we will take
    a look at that
        Mr. Gardner. So you have taken a look at jobs.
        Mr. Stanislaus. We have not directly taken a look at jobs.
        Mr. Gardner. But your answer just then said that you would
    take a direct look at jobs. So you have or you haven't?
        Mr. Stanislaus. Not directly in the rule, in the proposed
    rule.
        Mr. Gardner. I guess I would like an explanation to know
    whether or not the EPA considers jobs in their analysis,
    whether you have, and whether or not the EPA's position is to
    consider jobs when it does an economic analysis.
        Mr. Stanislaus. We definitely consider the consequence of
    jobs in our economic analysis. But the form of the economic
    analysis is really driven by the requirements of the rule.
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        [GRAPHIC] [TIFF OMITTED] T0732.019

        Mr. Gardner. This sounds like an answer--well, anyway, I
    think Yogi Berra could have some interesting comments on ``we
    have,'' ``we haven't.'' Is environmental justice considered in
    the economic analysis?
        Mr. Stanislaus. I don't believe directly, no. We just
    look--the primary amount of the benefit that we are trying to
    avoid is avoidance of contaminated drinking water
        Mr. Gardner. So environmental justice was not a part of
    your----
        Mr. Stanislaus. We did do an environmental justice
    analysis.
        Mr. Gardner. But not jobs.
        Mr. Stanislaus. In terms of the economic analysis, we
    looked at the benefits of avoiding, for example, drinking
    contaminated drinking water or avoiding catastrophic failures.
        Mr. Gardner. What does ``environmental justice'' mean to
    you?
        Mr. Stanislaus. Avoiding a disproportionate impact on
    certain communities.
        Mr. Gardner. And that was considered under the rule.
        Mr. Stanislaus. We considered--we evaluated that.
        Mr. Gardner. But disproportionate impact on the community
    does not include jobs.
        Mr. Stanislaus. We certainly looked at the economic
    consequence of the rule.
        Mr. Gardner. Well, I look forward to hearing back from you.
        Mr. Stanislaus. And I can provide you with those details.
        Mr. Shimkus. The gentleman's time has expired. The chair
    recognizes the gentleman from West Virginia, Mr. McKinley, for
    5 minutes.
        Mr. McKinley. Thank you, Mr. Chairman. And thank you for
    the committee allowing me to participate in this discussion.
        Thank you for being here. I have got several questions. I
    don't know how I am going to get through them all in 5 minutes.
    But let me--last week we had some testimony from Purdue
    University. Dr. Ridgeway came in and explained some of the
    differences between the costs of handling between the fly ash
    if it were considered a hazardous waste. And she was suggesting
    that it would rise from $300,000 at a university to $25
    million.
        Now, that is not a cost that can be absorbed by the
    taxpayers or the--excuse me--but it is going to be directly
    passed on to the consumers. And in that case you had indicated
    somewhere your analysis had been, I believe, $4 a month or $50
    a year under a class C, subsection C classification. I heard
    you make that testimony earlier, whereas her number is closer
    to $600 a year. Was she wrong?
        Mr. Stanislaus. Yes. I am not familiar with that. The
    previous number is more----
        Mr. McKinley. We can get that for you then on that, but I
    think we need to take a look at that and the difference. Then
    you also talk about the beneficial use. And I heard testimony
    from our colleague from California refer to it as toxic, toxic
    fly ash. I don't know that--is the EPA saying it is toxic?
        Mr. Stanislaus. We have----
        Mr. McKinley. You agreed. I mean, you didn't correct him
    when he said toxic fly ash, and you sat there and accepted
    that. Is it toxic?
        Mr. Stanislaus. Again, we are in the middle of a
    rulemaking, and whether it is regulated on the C or D is
    something that----
        Mr. McKinley. Because if it is toxic, I think we should
    treat it a lot differently with it. I am not interested in
    trying to pass this thing off--especially try to force it on
    the consumers if it is toxic. And if it is a hazardous
    material, we shouldn't do it.
        You have referred to the studies in 1993 and the study in
    2000 that both said it is not a hazardous material. The
    testimony is there. So I am concerned that the EPA is
    continuing this mantra that is going to stigmatize a by-
    product, an unavoidable by-product of burning coal. And the
    whole administration is concerned with what you are doing.
        We have information here in this packet from OMB, the Army
    Corps of Engineers, Department of Energy, DOI, Department of
    the Interior, Transportation, TVA, USDA, are all saying this
    could have some serious consequences to the economy of this
    country if you proceed with classifying it as a hazardous
    material. Their own comments back in--talk about the threat.
    What will corporate liability lawyers tell companies about
    creating wall board for use in homes, hazardous material? Would
    you, if you allowed it to be considered a hazardous material,
    would you allow hazardous material, even though the comment
    toxic, to be used in drywall in our schools for our children?
    You are saying that is an oK beneficial use?
        Mr. Stanislaus. Well, again, the only thing that we are
    identifying is the mismanagement of coal ash could result in
    impacts. There are lots of products containing constituents
    either maybe coal ash or not that----
        Mr. McKinley. There are a lot of products that have toxic
    chemicals with it. You do understand Bitchem asphalt highways
    have nickle, vanadium, chromium, mercury, arsenic, selenium,
    but yet we have asphalt highways all across America. I am not
    sure I understand, since the concentration levels are quite
    similar between fly ash and asphalt, why we are singling out
    asphalt or singling out fly ash for this issue.
        Do you also consider the amount of additional greenhouse
    gases that will be emitted by replacing this? We are going to
    do more damage to the environment with greenhouse gases if
    again, following the EPA's argument, if we substitute fly ash
    in other products, we are going to have to create more
    greenhouse gas. Which should we be more concerned with?
        Mr. Stanislaus. Well, clearly, we very much acknowledge the
    greenhouse gas benefits among other benefits of beneficial use
    of coal ash. I mean, the cement industry, for example, the
    concrete industry, tremendous benefits, greenhouse gas and
    otherwise.
        With respect to highways, we fully support the use of coal
    ash in highways. In fact, we have worked with the private
    sector. We have worked with the Department of Transportation.
        Mr. McKinley. You haven't included encapsulization as such.
    It is a surface. When you drive over it you are going to create
    dust. There is concrete dust. We all know that. I have designed
    plenty of highways in my days, and we all know that just simply
    using the highway, scraping it, the use of it is going to
    create more airborne debris. If you are going to call it a
    hazardous material, I think we have got problems.
        I am afraid I have run over my time. But I look forward to
    hearing more from you in the days ahead.
        Mr. Stanislaus. Sure. And just quickly, our perspective is
    safe handling, and we want to promote all the benefits.
        Mr. McKinley. We all do
        Mr. Shimkus. Thank you. We do appreciate your time, Mr.
    Stanislaus. I know it was a tough morning. But we do appreciate
    this. I think there are some areas of consensus and agreement.
    Legislation has moved to ensure that we don't go in a direction
    that we think is going to be harmful for the economy and not
    make much difference in the safety of our citizens. So--make
    any difference.
        There are some questions submitted to you for response. We
    will leave the record open, and if you could reply in a timely
    manner, we would appreciate it.
        I would also just end by saying, you know, on the retaining
    ponds, you all have authority under the eminent hazard
    authority on containment ponds. The language is ``may.'' So
    nothing is prohibiting EPA from doing containment ponds now
    under RCRA 7003 and Safe Water Drinking Act 1413. So I would
    draw that to your attention. And with that, I appreciate my
    colleagues for the first panel. Thank you, sir, for coming. And
    we will sit the second panel.
        I would like to officially recognize the second panel, and
    the way I will do it is I will just kind of introduce you all
    right at the beginning and get that out of the way. It won't be
    in any great depth, and then we will just go to your 5-minute
    statements. The full record is in the statement for the record.
        You can see it is a hearing that we have a lot of interest
    on, so we want to get to questions as soon as possible. So if
    we stay around 5 minutes that would be helpful.
        And with that, in the order I have here, well, I will go
    to--first of all, we have to my left Mr. Tom Adams, from the
    American Coal Ash Association, welcome.
        Then we have Ms. Dawn Santoianni. Oh, you are over there.
    Is that close? Oh, I know why. And then we have Ms. Zdanowicz.
    Thank you. Good.
        And then it looks like it is Ms. Lewis--that is easy--Ms.
    Evans and Mr. Havens.
        Mr. Havens, we want to welcome you here. And the opening
    statements are 5 minutes, as I said. So we will start with Mr.
    Adams to my left. You are recognized for 5 minutes, sir.

      STATEMENTS OF THOMAS H. ADAMS, EXECUTIVE DIRECTOR, AMERICAN
     COAL ASH ASSOCIATION; MARY T. ZDANOWICZ, EXECUTIVE DIRECTOR,
      ASSOCIATION OF STATE AND TERRITORIAL SOLID WASTE MANAGEMENT
      OFFICIALS; ARI S. LEWIS, SENIOR ENVIRONMENTAL TOXICOLOGIST,
     GRADIENT; DAWN SANTOIANNI, SENIOR ENGINEER, VERITAS ECONOMIC
       CONSULTING LLC, CARY, NORTH CAROLINA; LISA EVANS, SENIOR
       ADMINISTRATIVE COUNSEL, EARTHJUSTICE; AND CURTIS HAVENS,
                         CHESTER, WEST VIRGINIA

                      STATEMENT OF THOMAS H. ADAMS

        Mr. Adams. Thank you, Mr. Chairman. We appreciate the
    opportunity to come and talk to you today and the committee
    about one of the great recycling stories of our time, and how
    that success is endangered by potential overreaching by the EPA
    in this effort to create proposals and regulations for
    disposal.
        Our association was founded over 40 years ago to advance
    the management and use of coal combustion products in ways that
    are environmentally responsible, technically appropriate,
    commercially competitive, and supportive of a sustainable
    society. I would like to emphasize that most of ACAA's members
    are small businesses comprised of people who are dedicated to
    the cause of recycling and improving the environment. It is
    these businesses that are being hurt most by this regulatory
    uncertainty over EPA's proposal whether to go hazardous waste
    or nonhazardous waste for disposal.
        ACAA strongly endorses the bills that were recently filed
    to prohibit EPA from regulating coal ash as a hazardous waste.
    We would like to commend Mr. McKinley and Mr. Latta for their
    leadership in this issue. When EPA proposed a potential
    hazardous waste designation for coal ash over a year ago, the
    agency cast a cloud over our recycling efforts that has caused
    coal ash users across the country to decrease their
    specification and use of the resource. Now it appears that EPA
    will not come up with a final rule for quite some time. And Mr.
    Chairman, some of our members will not survive this delay.
        The bills before the House right now would prevent EPA from
    regulating coal ash as a hazardous waste under subtitle C,
    thereby resolving the regulatory uncertainty hurting our
    members. However, the bills would not prevent EPA from creating
    rules which protect human health and the environment, as we
    need.
        Our association was very clear last year when we went on
    the record passing a resolution of our board of directors,
    endorsing subtitle D rules for disposal, and opposing any form
    of subtitle C regulation.
        Supporters of the hazardous waste designation say there is
    no evidence of stigma associated with hazardous designation for
    coal combustion products. In fact, just the existence of EPA's
    proposal has created a stigma that has affected markets in
    three ways.
        Number one, consumers of coal combustion products are
    beginning to remove materials from their specification because
    of uncertainty over safety, or the fear of potential liability
    from using it. Owners across the country, including the Los
    Angeles Unified School District, Anne Arundel County in
    Maryland, and even the Canadian province of Nova Scotia have
    removed the use of fly ash and concrete over fears of its
    potential safety concerns. ACAA members are in these markets
    daily, dealing with this stigma, and know it is a real problem
    for the industry.
        Manufacturers of competitive products are currently using
    the potential for a hazardous waste rule as a marketing product
    for their materials. And we have seen it in blasting grit,
    brick manufacturing, lightweight aggregate production and
    concrete block manufacturing, all competitors using some form
    of the hazardous waste threat to market their products.
        And thirdly, we see commercial liability policies from
    insurance companies coming up with exclusions for concrete
    products and fly ash and synthetic gypsum being used in
    projects.
        So we have three very good examples of how the stigma is
    affecting markets today, even without a rule, with just the
    cloud of that rule. Supporters of hazardous waste designations
    say that recycling rates will actually increase under hazardous
    waste designation.
        Citing the experience of a handful of industrial by-
    products, EPA's evidence comes from material such as spent
    sulfuric acid, electric arc furnace dust, chat from lead and
    zinc mining and used oil. However, every one of the materials
    cited by EPA comes in small quantities which are heavily
    reprocessed before use and generally remain in the custody of
    the generators.
        CCPs are markedly different. They come in large quantities,
    are not reprocessed before use, are not used by the generator,
    and are used in products in retail, commercial and
    institutional markets. Citizens in this country can literally
    reach out and touch products containing CCPs in their homes.
        The coal ash recycling industry is worth protecting. The
    benefits of using coal ash rather than disposing of it are
    measured in the millions of tons annually, millions of tons of
    decreased landfill use, decreased natural resource use and
    decreased greenhouse gas emissions.
        In the decade from 1999 to 2009, the period for which data
    is most recently available, our Nation successfully recycled
    519 million tons of coal ash, some 38 percent of the 1.35
    billion tons generated. We decreased greenhouse gases by 138
    million tons during that same period through the use of fly ash
    and concrete products. In the process, we contributed 9- to $10
    billion annually to the economy and created over 4,000 green
    jobs.
        Our highways are benefited and bridges are benefited by the
    use of coal ash. Our agricultural markets are benefited by it
    as well.
        We urge you to support the bills that will resolve this
    regulatory uncertainty crippling the recycling effort in this
    country. Thank you.
        Mr. Shimkus. Thank you, Mr. Adams.
        [The prepared statement of Mr. Adams follows:]
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        Mr. Shimkus. Now we will recognize Ms. Mary Zdanowicz,
    Association of State and Territorial Solid Waste Management
    Officials. I wanted to get that on the record for the title. So
    you are recognized for 5 minutes.

                     STATEMENT OF MARY T. ZDANOWICZ

        Ms. Zdanowicz. Chairman, Ranking Member and members of the
    subcommittee, as the executive director of ASTSWMO, I won't say
    the whole name, I want to thank you for inviting us to testify
    today.
        Members are experts, government experts in the management
    of hazardous and solid waste and representing 50 States, five
    territories and the District of Columbia. ASTSWMO supports the
    goal of H.R. 1391, to prevent regulation of coal ash as a
    subtitle C material.
        The States have concerns, many concerns, but I am only
    going to address three today: One, CCRs are not a hazardous
    waste; the limited amount of capacity for hazardous waste; and
    the impact on State waste management programs.
        First, the hazardous waste issue. There are three bases for
    regulating CCRs as a hazardous waste that the EPA has cited.
    First is the criticism of the test method used to determine
    whether it has characteristics of hazardous waste; the second
    are damage cases; and the third is a draft risk assessment
    report.
        The test is TCLP, and it is the only procedure that is
    approved by the EPA for determining if a material has
    characteristics of hazardous waste for purposes of disposal.
    There are other tests that can be used to determine if a waste
    is hazardous for purposes of exposure to the environment. And
    our members support other methods that can in fact simulate
    those other conditions and believe that those are beneficial
    for beneficial use determinations. However, there is no
    evidence that TCLP is not appropriate for determining hazardous
    waste for the purposes of landfill. And based on vast
    experience of our State members, coal ash rarely is found to be
    hazardous with the TCLP method.
        The second issue is the risk assessment. And there is much
    to critique about that risk assessment. But the report itself
    really says it most succinctly, and that is the risk assessment
    was based on landfill methods that are outdated and that, using
    current landfill methods, the risk--there is not the risk
    identified in the report.
        And then the alleged damage cases. I can say the same thing
    for the 24 damage cases that EPA identified. And I say
    ``alleged'' because they are alleged to represent modern-day
    landfill construction and practices. In fact, they don't. Those
    24 cases are from--some of them, for example, are from before
    RCRA. There are only three that appear to be operated after
    1990, and for a short time. And those are times when the
    construction of landfills certainly were not what they are
    today. But, in fact, those cases, as well, are not really what
    I would call landfill practices, clearly not today. For
    example, some include gravel pits, quarries, and even a lake
    impoundment. That would never be considered disposal.
        Now, not all sites that are called damage cases actually
    are. Recent nongovernmental reports name an additional 70 sites
    as damage cases. But the sites were identified by members of
    the public who reviewed records from State environmental
    offices. And our members contest the conclusions about those
    sites in their reports. They found the information to be
    incomplete, incorrect, and/or misleading. The bottom line, any
    evidence that is used to support subtitle C regulation of coal
    ash should be based on sound science and modern disposal
    practices.
        The other issue I would like to address is disposal
    capacity. Using a very optimistic estimate, the amount of coal
    ash that will be produced for disposal is about 22 million tons
    a year. The States and EPA agree that there is less than 35
    million tons of capacity for coal ash--or, I am sorry, for
    hazardous waste currently. So that means in less than 2 years
    that capacity will be consumed and that has tremendous
    implications for State programs.
        [The prepared statement of Ms. Zdanowicz follows:]
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        Mr. Shimkus. Thank you very much. The time is expired.
    Y'all both did great on 5 minutes.
        Mr. Shimkus. Now we will see how Ms. Lewis does. Ms. Lewis
    is a toxicologist with Gradient. We welcome you, and you are
    recognized for 5 minutes.

                       STATEMENT OF ARI S. LEWIS

        Ms. Lewis. Good morning, everyone. I appreciate the
    opportunity to testify here today in front of this committee.
    My name is Ari Lewis, and I am a toxicologist and risk
    assessor, and I presently work in an environmental consulting
    company called Gradient. As far as my background goes, I have
    extensive expertise in metal toxicology and risk assessment,
    and over the past several years I have been actively involved
    in many different issues related to coal ash and public health.
        Before I move on to my key points, I would just like to
    point out that most of my technical work related to coal ash
    risks has been performed under contract with the Electric Power
    Research Institute. However, I am here today as an independent
    agent, and the opinions that I am going to express are my own.
        Today my testimony is focused on EPA's risk assessment and
    the regulatory impact analysis; and specifically, whether the
    health-based information contained in these documents supports
    the regulation of coal ash as hazardous waste. And just to get
    everyone oriented, I am going to sort of state my overall
    conclusions first, and then I will provide some of the details.
        So my overall conclusions are these: Number one, the
    results of the risk assessment actually demonstrate that under
    typical waste disposal practices, coal combustion residuals do
    not pose a public health concern. High-end risk estimates in
    EPA's risk assessments are uncertain and reflect more atypical
    exposure scenarios that do not necessarily reflect real-world
    conditions. As a result, the quantitative risk estimates that
    are presented in the risk assessment cannot be reliably used to
    distinguish among different regulatory options, mainly because
    the risks are likely to be severely overestimated.
        And finally, the results of the regulatory impact analysis
    and considerations of the uncertainties in that analysis
    demonstrate that there is very little public health benefit to
    be derived from regulating coal combustion waste as hazardous
    waste.
        So now I will just provide a little bit more background. I
    think, first, it should be recognized that the EPA risk
    assessment was a very complex undertaking that attempted to
    capture the full range of disposal scenarios under a wide range
    of environmental conditions and waste characteristics.
        While this was a very comprehensive approach, examining
    risks in this way leads to two major issues. The first one is
    that this approach creates hypothetical waste management units
    that do not necessarily reflect real-world conditions.
        And number two is that this kind of approach involves a
    large number of assumptions that leads to a profound amount of
    uncertainty which often manifest as risk overestimates. When
    this uncertainty is not fully characterized, it leads to risks
    that can be overstated and lack reliability, particularly when
    you are estimating high-end or low-end risk. And for this
    reason it is most appropriate to use the EPA results
    qualitatively, for example, to understand which types of waste
    types or management units are associated with more risk. So the
    EPA risk assessment presents more typical risk and high-end
    risk.
        As is typical of any risk assessment, both these estimates
    were developed using health protective perceptions that were
    meant to overestimate risk. And despite this health protective
    bent, the results of the risk assessment clearly showed that
    coal combustion waste does not pose a public health concern
    under typical waste management conditions.
        Although risk targets were exceeded for arsenic under some
    of these more typical disposal scenarios, the risks are
    actually similar to what you would expect if you were exposed
    to naturally occurring arsenic in food, water, and soil. At the
    high end, arsenic risk from landfills were still similar to
    those from naturally occurring background sources of arsenic.
    But arsenic risk from surface impoundments, ponds, were clearly
    elevated. These high-end risks reflect more improbable exposure
    scenarios and, as mentioned earlier, are highly uncertain and
    should not be used quantitatively to evaluate the need for
    hazardous waste determination.
        And finally, in regards to the RIA to determine if
    hazardous waste listing was justified, EPA conducted a cost-
    benefit analysis using the arsenic result from the risk
    estimate to estimate how many potential cancer cases would be
    avoided under different waste management options. As a result,
    the uncertainties in the arsenic risk assessment were
    perpetuated into the cost-benefit analysis. And then on top of
    this, the cost-benefit analysis itself contained several
    additional assumptions that led to overestimates.
        The implications of this are that the number of cancer
    cases avoided under each disposal scenario, subtitle B versus
    subtitle C, are likely to be significantly overestimated. And
    if this factored into the analysis, the difference in the
    cancer cases avoided between hazardous and nonhazardous
    disposal is negligible. And in fact, given the potential
    magnitude of this overestimate, it is plausible that regulating
    coal combustion residue as hazardous versus nonhazardous waste
    offers no measurable public health benefit. Thank you very
    much.
        [The prepared statement of Ms. Lewis follows:]
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        Mr. Shimkus. I want to thank you.
        And I now recognize Ms. Santoianni for 5 minutes. She is
    with Veritas Economic Consulting.

                      STATEMENT OF DAWN SANTOIANNI

        Ms. Santoianni. Good morning, Mr. Chairman, Members of
    Congress, and fellow panelists. Thank you for the opportunity
    to speak to you today.
        My name is Dawn Santoianni. I am a senior engineer with
    Veritas Economic Consulting. I have over 19 years' experience
    in combustion science, air pollutant formation, and quality
    assurance reviews.
        Veritas Economics is a small business that specializes in
    cost-benefit analysis, and assessing the energy production,
    economic implications, and electric reliability implications of
    proposed environmental policies.
        Today I will be presenting the results of our cost analysis
    on EPA's proposed subtitle C option for the regulation of coal
    combustion residuals, or CCRs. This research was sponsored by
    the Electric Power Research Institute, but I am here
    representing myself and my company alone, and my views do not
    necessarily reflect EPRI's views.
        The analysis we conducted quantifies the incremental costs
    for the additional requirements under the subtitle C option
    compared to a baseline, or what the current operations are
    today. We collected site-specific information on CCR handling
    and the plant configuration through a survey of coal-fired
    generating unit owners. And these survey responses covered 561
    units at 225 plants subject to the regulations.
        Our cost of the industry report is available through the
    EPRI Web site. It is publicly available, and I have several
    copies with me if you are interested. Although the landfill
    design requirements and the groundwater monitoring requirements
    under subtitle D are identical to those under subtitle C,
    because CCRs under subtitle C would be regulated from cradle to
    grave or their point of generation, this imposes additional
    standards and costs. Our analysis quantified these costs, which
    are excluded by EPA from their IRA.
        Under subtitle C, CCRs would be regulated from their point
    in generation, as I said, which requires retrofits and
    engineering upgrades in the plant for tanks, buildings, and
    conveyors that handle, process, or store CCRs. In addition,
    plants would also need wastewater treatment systems to replace
    the function currently provided by surface impoundments. Under
    subtitle C, EPA acknowledges surface impoundments would be
    effectively phased out.
        The decision to where to dispose of CCRs is a function of
    many site-specific parameters and also some restrictions that
    include seismic restrictions, fault area restrictions, unstable
    topology, State-level restrictions, floodplain, watershed, land
    availability. These restrictions may preclude some plants from
    having a landfill on-site for the disposal of their CCRs, and
    this was confirmed from our survey data. The amount of CCRs
    destined for disposal would be, obviously, impacted by any
    changes to beneficial use rates.
        I will note that in the IRA and in their proposal, EPA
    specifically expresses concern about unencapsulated uses of
    CCRs. These uses include large-scale structure fill, road
    embankments, and sand and gravel pits, and even agricultural
    uses.
        In the scenario where EPA examines stigma in the IRA, they
    assume an 80 percent reduction in these uses. It is entirely
    plausible that unencapsulated uses would completely go away,
    either due to direct regulation or stigma. Encapsulated uses,
    on the other hand, according to our calculations, represent
    only 31.5 percent of the total CCPs generated annually. So the
    bulk of the CCPs, regardless of what happens to products such
    as wall board and concrete, would end up still needing to be
    disposed.
        I will acknowledge that although the EPA assumes this drop
    in unencapsulated uses, they do not quantify the increased
    disposal costs associated with that for that scenario, as well
    as the economic impacts to the beneficial use industry in the
    form of job losses or lost revenue.
        Our analysis estimates that between 14.97 million and 20.55
    million tons of CCRs each year would be sent to commercial
    hazardous waste landfills under the subtitle C option. This is
    comparable to the ASTSWMO estimate that you heard about
    earlier, even though our figures were independently derived.
    This volume of waste, as you heard, would exceed the entire
    current capacity of the commercial hazardous waste market
    within 2 years.
        Our analysis shows that the cost of the subtitle C
    regulation to the electric generating industry, including these
    upstream costs to comply with subtitle C, are between $5.32
    billion and $7.62 billion annually over 20 years, and at a 7
    percent discount rate the total incremental costs are $55.3
    billion to $74.5 billion. This is significantly higher than
    EPA's estimate of $20.35 billion.
        I will make note, even though I am sorry I am running
    overtime, compliance with other environmental regulations such
    as the utility boiler max will increase the cost to comply with
    CCR rules beyond what we have estimated. A good example is the
    need to add scrubbers, which will increase the amount of CCRs
    generated and, thus, disposal cost.
        Since there has been several questions about economic
    analysis and benefit-cost analysis posed by the Congressmen, I
    will note that an integrated analysis should include the
    impacts to energy supply, electricity prices, jobs, and local
    electric reliability from these concurrent regulations. And I
    would emphasize that an electric reliability analysis that only
    considers the generating capacity to shut down is a partial
    analysis and does not provide a complete picture of the
    reliability impacts. Reliability analysis----
        Mr. Shimkus. I am going to ask you, just for the respect of
    other panelists, we will stop there. You will get some few
    questions. As you know, we were focused on economic analysis
    quite a bit in the first panel.
        [The prepared statement of Ms. Santoianni follows:]
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        Mr. Shimkus. So I would like to now recognize Ms. Evans,
    Lisa Evans from Earthjustice. You are recognized for 5 minutes,
    ma'am.

                        STATEMENT OF LISA EVANS

        Ms. Evans. Chairman Shimkus, Ranking Member Green, and
    members of the subcommittee, I appreciate the opportunity today
    to address the threats posed to our Nation's health and
    environment and economy by coal ash in ponds and landfills.
    When mismanaged, this toxic waste harms Americans nationwide by
    poisoning our water and our air.
        My name is Lisa Evans. I am senior administrative counsel
    for Earthjustice, a national nonprofit public interest law
    firm. I speak today for all those who are harmed by coal ash,
    some of whom are in the room this morning.
        I speak for those whose water is poisoned, whose air is
    filled with ash, whose homes have lost their value. I speak for
    those behind me from Illinois, West Virginia, Pennsylvania,
    Indiana, and Missouri, who fear for their children and their
    grandchildren and who came here for help.
        However, the bill before this committee does not serve
    these citizens nor does it serve the Nation. H.R. 1391, whose
    purpose is to remove EPA's authority to establish federally
    enforceable regulations for coal ash, will cause great harm.
        First, the bill strips EPA of its ability to consider
    science and public comments in its ongoing rulemaking. Second,
    the bill will perpetuate highly dangerous conditions at coal
    ash dumps across the country, wet and dry. Third, the bill will
    not increase recycling and, instead, will decrease the
    incentive for coal ash reuse. And, fourth, the bill passes on
    to future generations the enormous economic liability created
    by decades of ash mismanagement and ensures that this liability
    will grow ever larger in the absence of disposal and cleanup
    standards.
        No, this bill does not serve the Nation. This bill focuses
    very narrowly on only one aspect of the Nation's enormous coal
    ash problem--namely, the benefits of recycling a portion of the
    ash. In essence, the bill does try to divert a tsunami into a
    swimming pool.
        Please allow me to elaborate.
        First, the bill is an unwise and wholly unwarranted
    interference in an ongoing rulemaking. In June 2010, EPA
    proposed two alternative coal ash regulations. The Agency held
    eight public hearings and received an unprecedented 450,000
    comments. EPA must be permitted to consider these comments and
    to issue a final rule based on the best available science.
    Interference in EPA's ongoing technical and scientific
    deliberation is reckless and unjustifiable.
        Second, by removing EPA's ability to regulate coal ash
    under subtitle C, the bill guarantees that coal ash disposal in
    States with inadequate or even nonexistent regulations will
    continue without essential controls on dangerous dumping. It
    must be understood that the great majority of States do not
    require essential controls; yet, the bill prevents EPA from
    filling this gap.
        States that fail today to require composite liners, dust
    controls, monitoring, and financial assurance, like Illinois,
    Kentucky, Ohio, Oklahoma, Texas, and many more, can continue
    unchanged. The reality is that most States have been unwilling
    to impose restrictions on coal ash dumping for decades. These
    States simply are not going to change their programs based on
    voluntary guidelines.
        In addition, if Federal standards are not made mandatory,
    there will be a significant disproportional impact on low-
    income communities and communities of color--our Nation's most
    vulnerable communities.
        Further, ironically, the bill prevents EPA from phasing out
    the most dangerous form of coal ash dumping, wet disposal of
    ash in impoundments. This bill will make it impossible for EPA
    to once and for all phase out high-risk coal ash dumps like the
    one that collapsed in Kingston, Tennessee, in 2008.
        Third, the bill will not increase recycling. Market
    analysis and our research of all the hazardous wastes that have
    been designated to be hazardous show that, when disposal of
    waste is regulated under subtitle C, there is far greater
    incentive to recycle because disposal costs increase. This bill
    will remove this incentive, and recycling cannot compete with a
    hole in the ground. Significant increases in real innovation in
    the reuse of fly ash and other combustion waste will occur only
    if disposal of coal ash is strictly regulated.
        Lastly, the bill does nothing and, in fact, only increases
    the enormous existing liability posed by the Nation's existing
    coal ash dumps. This bill turns its back on the reality of the
    hundreds of aging, poorly constructed, and leaking dumps
    located throughout the U.S. Another costly disaster is
    inevitable if ash ponds are not phased out. It is also
    inevitable that the drinking water of more communities will be
    poisoned by arsenic and other chemicals if leaking dumps are
    not monitored and lined. Does this Congress really want to
    direct EPA to ignore these deadly hazards? And who will accept
    responsibility when this occurs?
        Yes, this bill asks EPA to close its eyes and hope this
    immense and deadly problem goes away. Yet, the Resource
    Conservation Recovery Act requires EPA to carefully consider
    the best available science, health risks, and environmental
    damage in its hazardous waste determination. This process has
    worked well for 30 years. Tying EPA's hands now and removing
    science in the middle of an ongoing rulemaking is a reckless
    call that will have dire consequences for the Nation's health
    and economy. And it will have dire consequences for all those
    in this room and elsewhere who today are relying on the good
    sense, compassion, and foresight of this Congress.
        Thank you.
        [The prepared statement of Ms. Evans follows:]
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        Mr. Shimkus. Thank you.
        Now I would like to recognize Mr. Havens for 5 minutes.
        Welcome, sir.

                       STATEMENT OF CURTIS HAVENS

        Mr. Havens. Thank you. Good morning, Mr. Chairman, members
    of the committee. My name is Curt Havens, and I live in
    Representative McKinley's First District in Hancock County in
    Chester, West Virginia. We live 1,584 feet from the nearest
    finger of Little Blue Run unlined coal ash impoundment. Our
    home is 100 feet below the elevation of the impoundment.
        At this time, I would like to introduce my wife of 40
    years. She is sitting behind me.
        In 1974, a Bruce Mansfield representative knocked at our
    door and handed me and my wife a beautiful, laid-out plan of a
    recreational place that would have hiking, bike trails,
    fishing, and a place to spend time with my family. But, today,
    this same site is not a beautiful lake; it is a toxic waste
    dump called Little Blue.
        The impoundment is 1,300 feet, and 400 feet deep in some
    places. It has a high-hazard dam that, if breached, will cause
    loss of human life. We believe the land that God has given us
    to take care of is being destroyed by a coal ash impoundment
    since 1975. The smell of rotten egg and sulfur hangs in the air
    near our homes, and several of the neighbors are experiencing
    water gushes on their land and into their springs. Water gushes
    were not there before First Energy began filling the West
    Virginia site of the impoundment.
        There is a fellow named Merle Beyer who has a vehicle
    repair shop on Johnsonville Road down from us. For years, he
    had used a spring on his land to make coffee. First Energy does
    the testing from the spring. The man that comes and does the
    collection of the water told Merle not to drink it because it
    will do you in.
        First Energy did acknowledge a correlation between their
    impoundment and the offsite seeps when they met with West
    Virginia DEP on October 27, 2010. We already have problems and
    worry that First Energy plans to dump more toxic ash near our
    homes. First Energy will be stacking geotubes filled with toxic
    ash on the impoundment 62 feet high. We worry that this
    additional ash will push more water toward the seeps on the
    West Virginia side.
        The seeps coming from Little Blue pond are contaminated. On
    August the 21st, 2010, the West Virginia DEP did two water
    tests on seeps and springs, and the end result is high levels
    of cadmium in both tests. As I understand it, cadmium appears
    to be the largest single contributor to thyroid disease.
        I had thyroid cancer in 2001 and had my total thyroid
    removed. My wife, Debbie, has a lump on her thyroid that they
    found last year, and they are monitoring it and keeping an eye
    on it. My neighbor, which is 30 years old, has thyroid trouble
    and a tumor on his spine. Another neighbor, 70 years old, had
    thyroid cancer and prostate cancer. My doctor told me in
    Pittsburgh, the surgeon said that thyroid is mostly in women,
    not men. There are three men within a half a block that had
    thyroid cancer.
        We found out that there are 10 monitoring wells at Little
    Blue that have high levels of arsenic, and no one told us about
    them. We found that after reviewing public documents. Even more
    troubling is the fact that, on January 25th, 2006, the West
    Virginia DEP turned over the rights to Pennsylvania DEP. This
    is West Virginia land, not land in Pennsylvania. About one-
    third of the unlined coal ash impoundment is in West Virginia.
        I have concerns about my wife's health. She has Type 1
    diabetes. She has full body tremors. Her hand shakes. And the
    only thing--she takes pills that control that, but someday them
    pills might stop working, and that wears her out. I have Type 1
    diabetes. I have high blood pressure; as I said before, thyroid
    cancer. And I have poor circulation in my legs and feet.
        I have grown a garden on my land for the past 34 years and
    have fed my children and my grandchildren from it. Two years
    ago, I had a garden with some nice red ripe tomatoes in it. My
    granddaughter, Sara, wanted to walk in my garden. She was 4 at
    that time. As we walked through the garden, I looked back and
    she had picked a tomato and took a bite out of it. I took it
    from her; I didn't want her to eat any more of it.
        The next day, I destroyed my whole garden--beans, tomatoes,
    peppers, cabbage. I cried like a baby. I enjoyed my garden. We
    need my soil tested for things that is in coal ash to see if it
    is hazardous. The grandkids--we have, you know, two grandkids
    that live close to us, and they are always asking Grammy and
    Pappy to make--Grammy to make chili and vegetable soup. They
    enjoy that. We can't use the stuff out of our garden because we
    are not sure what is in the soil.
        I had been honored to serve my country as a Yeoman Third
    Class aboard the USS John S. McCain DDG-36 in the Navy. Now I
    come to Washington, D.C., this week to speak to Members of
    Congress and the administration, asking for a strong Federal
    protection of my family and community.
        We are only on earth one time. Please help us keep it safe
    and make it a better place for us and our grandkids. We
    understand jobs are important, but no one should have to choose
    jobs or health. We need and deserve both.
        We have friends that do work at First Energy and neighbors
    that work there. People say, why don't you just move? Well, who
    can afford to move? Who would buy our house? You know, the
    depreciation and the value is down. Who would live in an area
    that has risk of health reasons there? You know, we put in 31
    years of hard work in our house to keep it up. So what we do? I
    retired 6 years ago from the U.S. Postal Service, so we have a
    nice, comfortable home to live in.
        We met with Representative McKinley yesterday, and we would
    like to still invite him to our house sometime and come up and
    see the impoundment. And we would like to continue talking to
    you and keep in contact.
        Thank you.
        [The prepared statement of Mr. Havens follows:]
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        Mr. Shimkus. Thank you, sir. Thank you for your service.
    And the great thing about our Constitution is that it does give
    individuals the right to collectively organize to air their
    grievances, and you got the chance to do that today.
        Mr. Havens. I am sorry about my voice.
        Mr. Shimkus. No. We do appreciate you.
        Now I recognize myself for the first 5 minutes of
    questioning.
        Ms. Lewis, some of the panelists are testifying that having
    EPA regulate coal ash under subtitle D will dramatically
    increase the incidence of cancer cases. In your professional
    opinion as a toxicologist, do you agree with their point?
        Ms. Lewis. No. I am not sure why people would say that. If
    you looked at the regulatory impact analysis, it wouldn't
    support that at all.
        And then, based on my professional opinion, as I sort of
    mentioned in my comments here, those estimates that are in that
    analysis--and I don't remember the exact numbers--they would
    definitely overestimate the difference between subtitle C and
    subtitle D.
        And I don't want to get into all the details because it
    would bore you people. But I think, you know, in a back-of-the-
    envelope calculation and the things I have looked at, I mean,
    it would really amount to, on a hypothetical basis, less--well,
    well, well under one excess cancer case per year. But it could
    be as low as zero. There is no way to tell because you are
    comparing hypotheticals. You are looking at hypothetical risks.
        I mean, there is certainly no evidence that I am aware of
    that anyone has ever----
        Mr. Shimkus. Can you explain the difference between
    toxicology and a public health assessment?
        Ms. Lewis. Well, toxicology is looking at human health
    studies, looking at animal studies, looking at in vitro
    studies, and garnering information about the toxicity of the
    chemical, in and of itself, whereas a public health assessment
    more combines the toxicity information with the exposure
    information to understand how that may impact public health.
        Now, it is very important--this has come up a lot here,
    talking about the toxicity of something. In and of itself, that
    is not a very informative statement. You really need to
    understand how people are exposed and what amount they are
    exposed to, to really understand the public health impacts.
        Mr. Shimkus. Great.
        Mr. Adams, if you follow a lot of the opening statements,
    even Ms. Evans mentioned that when mismanaged--my question is,
    you heard Mr. Dingell in his opening statement and his
    questions. Did you disagree with any of his line of thought, as
    far as really defining the problem and possible remedies?
        Mr. Adams. Well, first off, the American Coal Ash
    Association concentrates on the beneficial uses of coal
    combustion products, and we try to stay away from discussions
    of what is appropriate for disposal.
        Having said that, what we are looking at here is a
    situation that was fired by the Tennessee Valley Authority
    problem at Kingston. That really coalesced people around
    creating rules for disposal.
        So when we listen to a lot of the comments about damage
    cases and concerns about disposal, they seem to focus on the
    wet impoundments. So what Congressman Dingell was mentioning is
    perhaps we need to look at the impoundment problem and solve
    that problem as our most immediate concern. And then, if we
    need to move later on, I think it would make sense to take
    other action.
        But in terms of the ACAA, we really just encourage any type
    of regulation other than a subtitle C hazardous waste----
        Mr. Shimkus. Great. Let me move on because my time is
    limited.
        Ms. Santoianni, obviously, the big debate was cost-benefit
    analysis, job creation. Wide disparities in the cost, compared
    to what EPA was sort of alluding to but obviously on record
    saying they never calculated job impact.
        In an economic analysis, have you done a job impact?
        Ms. Santoianni. No. We were not tasked to do a full
    economic analysis, so----
        Mr. Shimkus. But let's, then, follow up on--Mr. McKinley
    talked about--and she was here last week, one of the university
    professors from Purdue, dramatically talked about the huge
    increase in the cost to that university because they have a
    coal-fired power plant.
        When you sat in on the first panel and I intervened with
    the EPA representative, was I correct in saying they are just
    talking about the electricity rate; they are not talking about
    the loss of revenue or the increased disposal cost of a new
    regulatory regime? Is that correct?
        Ms. Santoianni. That is correct. With the subtitle C
    proposal, their estimation of cost is exactly the same
    regardless of what kind of stigma they examined. And they do
    not look at the increased cost of disposal. In fact, they
    assume the same disposal patterns as today, whereas subtitle C
    imposes a whole set of other requirements that would cause more
    to go offsite and commercial, at an increased cost, obviously.
        Mr. Shimkus. Yes, and let me go to Ms. Zdanowicz.
        Does the history back up the testimony from Ms. Santoianni?
        Ms. Zdanowicz. There is some history to rely on, and that
    is, in 1980, industries had much of their waste stored onsite.
    But later, when it became hazardous, those industries, rather
    than going for corrective action and subtitle C permits, went
    for offsite disposal. So, in fact, there is precedence for
    that.
        Mr. Shimkus. And, actually, just the opposite of what some
    of the previous testimony said.
        Ms. Zdanowicz. Yes.
        Mr. Shimkus. So thank you.
        My time has expired. I will now yield to the ranking
    member, Mr. Green, for 5 minutes.
        Mr. Green. Thank you, Mr. Chairman.
        I have a number of questions. But it sounds like the
    storage of the slurry is the problem. But would the industry,
    Mr. Adams or Ms. Zdanowicz, would they oppose lining not only
    slurry but also the lining requirements also for dry storage?
        Mr. Adams. Our association supports subtitle D
    requirements. In the EPA proposals, the requirements, the
    engineering standards for either subtitle C or subtitle D
    landfills would be identical. So you are going to get the same
    level of protection; the difference is in who gets to enforce
    that protection.
        Mr. Green. Yes. Well, I understand that subtitle D is the
    State enforcement. But, you know, that is what we do here, is
    change the law. And if we gave EPA the authority to have these
    standards--and, of course, they still could be forced just like
    EPA does with lots of other issues--the States would have the
    first authority to enforce them. But if we required that lining
    for both dry storage and wet storage, is that a problem with
    the industry?
        Mr. Adams. Not for the American Coal Ash Association and
    its members.
        Mr. Green. OK.
        Mr. Havens, one, thank you for your service.
    Congratulations to you and your wife for 40 years. My wife and
    I celebrated 41 in January.
        Mr. Havens. Congratulations.
        Mr. Green. So, you know, for our wives to put up with us
    all these years, it is amazing.
        Have you had a chance to test your garden with soil
    samples?
        Mr. Havens. I have talked to the West Virginia DEP, and he
    is supposed to come up from Charleston or Fairmont and test it.
    They said they would test my soil for me.
        Mr. Green. I know--you know, I only grow peppers and
    tomatoes in my yard, but I know people test their soil all the
    time to have certain types of plants that are successful. You
    know, in Texas, those are azaleas or whatever. And, obviously,
    I would do that. That is why I was wondering, because living
    100 feet--and I sympathize with you.
        I moved into my first house in 1971, and we were told this
    15-acre tract was going to be a park. We didn't go bother to go
    check with the county to see if they had reserved that 15-acre
    tract. It turned out they were going to build multifamily
    there. We ended up having a school built and a community
    building. But it took a lot of political work to do that,
    because the developer, even though they told us something, we
    didn't check on it. It made me--from then on, when I buy
    property, I look and see what the reserves are.
        Mr. Havens. Our thing was we moved there in 1973 when I got
    out of the Navy. We was there before the dam was.
        Mr. Green. Yes. Well, and somebody owned that property, and
    they have the right to use that property. But even though you
    were told that, there was no guarantee for that for you.
        Mr. Havens. Yes.
        Mr. Green. Ms. Evans, in your testimony, you state that
    market analysis shows that when the disposal of waste is
    regulated under subtitle C, there is a greater incentive to
    recycle because of the disposal cost increase.
        That is interesting, because I want to--obviously, we want
    to--in EPA testimony, they want more recycling. And I think
    that is what we want.
        And I am going to ask the rest of the panel, particularly
    from the industry, is that true? Because I know we have--the
    percentage we have--37 percent now is recycled. And, you know,
    the cheapness of just slurry storage or dry storage doesn't
    encourage recycling. Is that correct?
        Ms. Evans? And then I will ask the industry in my minute
    and 30 seconds.
        Ms. Evans. It is absolutely correct. When you dump the ash
    in a pond or landfill, it can cost $3 a ton; it can cost almost
    nothing. There is no incentive, with that kind of cheap
    disposal cost, to find other uses for it.
        In my own home State of Massachusetts, when the
    Massachusetts State government clamped down on two power
    plants, they were unable to keep using their unlined ponds.
    They ended up going to a re-burning system on their power
    plant, which now captures, at that one, at our biggest plant,
    about 100 percent of the ash, which is now used in concrete.
    That is the kind of success story when a company cannot just
    dump in a hole next to the plant.
        Mr. Green. Mr. Adams, I know that is what your association
    does. Do you see that if the cost for wet storage or dry
    storage is so cheap, then it would discourage recycling?
        Mr. Adams. No. That, in fact, is not the case. What is
    happening in the marketplace--and, first off, as I mentioned
    earlier, we look at beneficial use. And, first, we look at
    environmental safety; secondly, we look at technical
    appropriate; third, it has to be commercially competitive. And
    our members have done a great job, as evidenced by the
    recycling rate today, of identifying how those products compete
    in the marketplace and the real value. Utilities have
    recognized that, too. And, over time, contracts between
    utilities and their marketing companies have changed to reflect
    that.
        So we have currently many, many situations where, for
    example, in Wisconsin, if you look at the CCPs generated there,
    over 90 percent are used beneficially, with We Energies using
    99 to 100 percent every year because they recognize it has
    value to market.
        Mr. Green. Well, obviously, I think all of us would rather
    have wallboard with coal ash in it than what we have got from
    China.
        Mr. Adams. The wallboard you are looking at does not
    contain coal ash. It contains synthetic gypsum from the
    scrubbers in power plants. There is no ash in that wallboard.
    It is synthetic gypsum, about 35 percent of the wallboard.
        Ms. Evans. But if I could respond to the Wisconsin
    situation, is that in Wisconsin there are better laws than
    average, which gives an incentive to the Wisconsin We Energies
    to the utilities to recycle. That same situation would not be
    true in Texas, in Alabama, in Illinois.
        Mr. Green. We try not to have much coal ash.
        Mr. Shimkus. The gentleman's time has expired.
        Now the chair recognizes the chairman emeritus, Mr. Waxman,
    for 5 minutes.
        Mr. Waxman. Thank you, Mr. Chairman.
        I would like to set aside the debate over subtitle C versus
    subtitle D and focus on what protections should be established
    on the ground.
        Mr. Adams seems to state that the American Coal Ash
    Association supports phasing out wet impoundments like the one
    that burst in Kingston, Tennessee, in 2008.
        I would like to go down the line and ask all of the
    witnesses if they support phasing out wet impoundments. And
    please just give me a ``yes'' or ``no'' answer.
        Mr. Adams?
        Mr. Adams. Yes, if those impoundments are not providing
    environmental protection----
        Mr. Waxman. ``Yes'' or ``no.'' Because I have ``yes'' or
    ``no'' questions and want to get everybody in.
        Ms. Zdanowicz?
        Ms. Zdanowicz. Our association has not taken a position on
    that, so I can't say ``yes'' or ``no.''
        Mr. Waxman. OK.
        Ms. Lewis?
        Ms. Lewis. I don't have a position on that either. I would
    want to----
        Mr. Waxman. OK.
        Ms. Santoianni. I don't have a position on that either.
        Mr. Waxman. OK.
        Ms. Evans?
        Ms. Evans. Yes.
        Mr. Havens. Yes.
        Mr. Waxman. OK.
        We have heard testimony about the need to ensure that the
    standards for dry landfill disposal are also improved. These
    standards would likely include the use of double liners,
    groundwater monitoring, dust control, and other necessary
    measures.
        Would each of you please answer if they would support
    improving the standards for dry landfill disposal?
        Mr. Adams. Yes.
        Ms. Zdanowicz. Many of our States are doing that already.
    So, yes, we support.
        Mr. Waxman. OK.
        Ms. Lewis. To the extent I think it would reduce risk, yes.
        Ms. Santoianni. Yes, I would support that.
        Ms. Evans. Yes.
        Mr. Havens. Yes.
        Mr. Waxman. OK.
        Let me ask each of the witnesses if improved coal ash
    disposal standards should be enforceable.
        Mr. Adams?
        Mr. Adams. Yes.
        Ms. Zdanowicz. Yes. But if I might say, yes, by the States.
        Ms. Lewis. There should be some oversight, you know. I
    don't have an opinion about who oversees that.
        Ms. Santoianni. I don't have a position on who oversees it.
        Mr. Waxman. I am not asking who. Do you think they ought to
    be enforceable?
        Ms. Santoianni. Yes, there should be enforcement.
        Ms. Evans. Yes.
        Mr. Havens. Yes, uh-huh.
        Mr. Waxman. Over the years, this committee has typically
    ensured that there is a minimum Federal floor for public health
    and environmental protection. States are typically authorized
    to provide additional protections, but a Federal floor prevents
    a race to the bottom.
        Would each of the witnesses state whether they support a
    minimal level of protection that would apply consistently to
    every State?
        Mr. Adams?
        Mr. Adams. We support regulation that is enforceable by the
    State. And it works for municipal solid waste----
        Mr. Waxman. Would you agree with a Federal floor, no matter
    who enforced it?
        Mr. Adams. Expressed in the subtitle D rule? Yes.
        Ms. Zdanowicz. It would depend on what it is. But, yes. And
    many of the States actually go well beyond what is required.
    And even though there is no requirement for CCR, the vast
    majority of our States have permitting programs----
        Mr. Waxman. I am not--my only question, and I want a
    ``yes'' or ``no,'' is: Do you think there ought to be a minimal
    level of protection that would apply to every State?
        Ms. Zdanowicz. Yes.
        Mr. Waxman. OK.
        Ms. Lewis. I would agree.
        Ms. Santoianni. I don't have an opinion on that.
        Mr. Waxman. OK.
        Ms. Evans. Yes.
        Mr. Havens. Yes.
        Mr. Waxman. OK.
        If EPA acts under subtitle D instead of subtitle C, EPA
    believes that the only way to enforce minimum safety standards
    at a disposal site will be through citizen suit enforcement.
        Will each of you state whether you support allowing
    impacted citizens to enforce requirements through the use of
    citizen suits? A ``yes'' or ``no'' on this.
        Mr. Adams. That statement is incorrect. EPA would have
    authority under imminent endangerment to step in and enforce
    under subtitle D. So the premise of the statement is incorrect.
        Mr. Waxman. If it is not an imminent danger and they want
    to enforce safety standards, would you think that they ought to
    be able to enforce them through citizen suits?
        Mr. Adams. We trust the States with municipal solid waste;
    we trust them with this. So not at the Federal level.
        Mr. Waxman. You don't want citizen suits at any level?
        Mr. Adams. Citizen suits are--yes. Entirely, yes.
        Mr. Waxman. OK.
        Ms. Zdanowicz. Yes.
        Ms. Lewis. Yes.
        Ms. Santoianni. Yes.
        Ms. Evans. Yes.
        Mr. Havens. Yes.
        Mr. Waxman. OK.
        I am concerned that if EPA acts under subtitle D, there
    would be no consistent national standards that would be
    consistently enforced. Instead, we would largely rely upon the
    States to ensure the public health and the environment are
    protected.
        Mr. Havens, you have experience with coal ash regulation at
    the State level. Do you think that these important protections
    can be left to the States?
        Mr. Havens. I think all agencies should protect us as
    citizens, our health and----
        Mr. Waxman. Should it be left to the States, or should
    there be a Federal----
        Mr. Havens. I think a Federal.
        Mr. Waxman. OK.
        Perhaps all States would elect to require liners,
    groundwater monitoring, and dust control. But there is nothing
    in the legislation before us today that requires or encourages
    the finalization of EPA's subtitle D proposal or the adoption
    of those requirements by States.
        Ms. Zdanowicz, you are here representing State regulators.
    Can you offer the committee an assurance or a commitment that
    States would adopt those requirements?
        Ms. Zdanowicz. Based on prior experience, yes, when there
    is a Federal requirement, the States do adopt it.
        Mr. Waxman. OK.
        Well, we all agree that there is a risk and that
    engineering controls can mitigate that risk. If we take our
    commitment to protect human health and the environment
    seriously, we should also all agree that those necessary
    controls should be required.
        And I thank you, Mr. Chairman.
        Mr. Shimkus. I thank the chairman emeritus.
        The chair now recognizes the gentleman from West Virginia,
    Mr. McKinley, for 5 minutes.
        Mr. McKinley. Thank you again, Mr. Chairman, for allowing
    me to participate in this panel discussion.
        Ms. Zdanowicz, I heard earlier in the testimony that Ms.
    Evans said that States are unwilling to regulate coal ash.
    Could you amplify on that a little bit or respond to that?
        Ms. Zdanowicz. Yes. And I am glad that you asked me,
    because I disagree with that premise completely.
        There are 42 States at which coal ash is disposed. The vast
    majority of those States have permitting programs, require
    composite liners or multiple liners, require groundwater
    monitoring, a number of the things that are protective and that
    EPA addressed in its proposal. In addition, at least 15 States
    are considering changing their regulations with regard to coal
    combustion waste.
        So I don't agree that the States aren't doing anything,
    and, in fact, I would say just the opposite. I am continually
    impressed with our members and the extent that they go to to
    make sure the public is safe.
        Mr. McKinley. OK.
        Tom Adams, could you amplify a little bit? There was also a
    comment that, if it becomes a hazardous material, that 1391, if
    1391 is passed, Ms. Evans said it would decrease coal ash
    recycling.
        I think, if I could preface this remark or this question, I
    think this whole argument today is over we are trying to remove
    the stigma to fly ash. That is really what it is all about. Is
    that not a fair statement?
        Mr. Adams. Absolutely. What is happening in the marketplace
    now--and EPA has projected some ideas about what is going to
    happen with marketing and that kind of thing. Our people live
    it day-in and day-out. They are hearing from the users, the
    owners, the specifiers, contractors, consultants. They are
    hearing what people's position will be under a hazardous waste
    rule.
        This uncertainty, this regulatory uncertainty of are we
    going hazardous, are we going nonhazardous, is crippling the
    recycling industry. And each day that this goes on, more and
    more damage is happening to the recycling industry. And lot of
    these are small businesses, as I mentioned in my testimony,
    that will not survive long delay.
        Mr. McKinley. I don't think any of your vendors or the
    people downstream disagree that if it is causing--it is
    probably the way that the dams in the past, the impoundments in
    the past have been contained. This Little Blue, it was an old
    dam, an impoundment built in the 1970s and didn't have the
    requirements that they have today.
        But under the new requirements, whether it is a single
    liner or a double liner, I think anyone that is using fly ash
    is going to be concerned about they don't want that to leachate
    into the water. Is that not fair? I don't think anyone is
    intentionally trying to cut a corner and pollute the atmosphere
    or the environment.
        Mr. Adams. Absolutely. And when I discuss this issue with
    experts on recycling, like Utility Solid Waste Activities
    Group, if you go back and look at the landfill and other
    disposal facilities that have been built in the last 15 to 20
    years, you find these protections are built into virtually all
    these projects. As Ms. Zdanowicz indicated earlier, if you look
    at the damage cases closely, they are all on facilities that
    are 20-plus years old, some of them going back even 40 years.
        Mr. McKinley. Let me go back. You may or may not have been
    in the room. In the last panel, there was an issue raised. This
    is a document from the administration: ``Regulation of the CCR
    under subtitle C could have negative impacts on the reuse or
    beneficial use of these materials and may create liability
    concerns related to past reuse of these materials and
    applications, such as construction and agriculture. And these
    implications have not been fully explored by the EPA.''
        Now, that statement is supported by the USDA, the TVA, the
    Department of Transportation, Department of Interior,
    Department of Education, the Corps of Engineers, CEQ, OMB. Are
    they wrong?
        Mr. Adams. Those agencies all have experience with using
    these materials beneficially for different purposes. In the
    case of, as you cited, the USDA, they have completed a risk
    assessment on the use of synthetic gypsum in agriculture, but
    EPA will not even pick up the phone and call them and ask them
    for the data.
        In the particular case of use of coal ash in minefill, EPA
    is committed to working with the Office of Surface Mines. We
    have encouraged the EPA to do the same on agricultural issues
    with USDA, but they don't seem to have that phone number.
        Mr. McKinley. OK. I just want to make sure, as long as we
    all understand what 1391 is to do, is to remove the stigma that
    can be associated with it. The idea of the States maintaining
    it--and what I heard you say, Ms. Zdanowicz, is that the States
    will regulate it. And hopefully there will be the standards
    set, if it is a double one, a single one, whatever it is, to
    make sure that we don't have--because none of us want to see
    anyone hurt. And to think about what the Havens have had to
    deal with, I am sorry. That was a past situation. I want to
    make sure that never happens again to another family in
    America.
        I yield back my time. Thank you.
        Mr. Shimkus. The gentleman yields back his time.
        I ask unanimous consent that the following items be
    included in the record, and these have been pre-cleared: a
    letter to Administrator Jackson dated November 14, 2010, from
    Drs. Cosnet, Smith, and Vadder; a letter to the subcommittee
    from the Edison Electric Institute and the Environment Council
    of the States, both dated April 13th, 2010; and two letters to
    residents from First Energy Generation Corp. dated October
    22nd, 2010, and February 4th, 2011, regarding the Little Blue
    Run impoundment.
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        Mr. Shimkus. I would also like to thank the second panel
    and remind Members they have 10 days if they would like to
    submit additional questions.
        And if they do so, if you would get those back to us, we
    would appreciate it. We know you took out time in your day to
    help us this morning. We do appreciate it.
        And I call the hearing adjourned.
        [Whereupon, at 12:04 p.m., the subcommittee was adjourned.]
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