[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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    [GRAPHIC] [TIFF OMITTED] T0732.015
    
    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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    [GRAPHIC] [TIFF OMITTED] T0732.017
    
    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.
    [The information follows:]
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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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