[Senate Hearing 114-57]
[From the U.S. Government Publishing Office]
S. Hrg. 114-57
OVERSIGHT OF THE ENVIRONMENTAL
PROTECTION AGENCY'S FINAL RULE TO
REGULATE DISPOSAL OF COAL COMBUSTION
RESIDUALS FROM ELECTRIC UTILITIES
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
JUNE 17, 2015
__________
Printed for the use of the Committee on Environment and Public Works
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
JAMES M. INHOFE, Oklahoma, Chairman
DAVID VITTER, Louisiana BARBARA BOXER, California
JOHN BARRASSO, Wyoming THOMAS R. CARPER, Delaware
SHELLEY MOORE CAPITO, West Virginia BENJAMIN L. CARDIN, Maryland
MIKE CRAPO, Idaho BERNARD SANDERS, Vermont
JOHN BOOZMAN, Arkansas SHELDON WHITEHOUSE, Rhode Island
JEFF SESSIONS, Alabama JEFF MERKLEY, Oregon
ROGER WICKER, Mississippi KIRSTEN GILLIBRAND, New York
DEB FISCHER, Nebraska CORY A. BOOKER, New Jersey
MIKE ROUNDS, South Dakota EDWARD J. MARKEY, Massachusetts
DAN SULLIVAN, Alaska
Ryan Jackson, Majority Staff Director
Bettina Poirier, Democratic Staff Director
C O N T E N T S
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Page
WEDNESDAY, JUNE 17, 2015
OPENING STATEMENTS
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma... 1
Boxer, Hon. Barbara, U.S. Senator from the State of California... 4
WITNESSES
Holleman, Frank S. III, Senior Attorney, Southern Environmental
Law Center..................................................... 6
Prepared statement........................................... 9
Cave, Nancy, North Coast Director, Coastal Conservation League... 24
Prepared statement........................................... 26
Dunn, Alexandra, Executive Director and General Counsel,
Environmental Council of the States............................ 29
Prepared statement........................................... 31
Kezar, Mike, General Manager, South Texas Electric Cooperative,
on Behalf of National Rural Electric Cooperative Association... 40
Prepared statement........................................... 42
Gray, Danny, Executive Vice President, Charah Inc. on Behalf of
the American Coal Ash Association.............................. 128
Prepared statement........................................... 130
ADDITIONAL MATERIAL
Letters:
Association of State and Territorial Solid Waste Management
Officials (ASTSWMO)........................................ 203
Colorado Department of Public Health & Environment........... 207
State of Nebraska, Department of Environmental Quality....... 208
American Society of Concrete Contractors (ASCC).............. 209
Santee Cooper................................................ 211
Indiana Department of Environmental Management............... 213
State of Wisconsin Department of Natural Resources........... 215
OVERSIGHT OF THE ENVIRONMENTAL PROTECTION AGENCY'S FINAL RULE TO
REGULATE DISPOSAL OF COAL COMBUSTION RESIDUALS FROM ELECTRIC UTILITIES
----------
WEDNESDAY, JUNE 17, 2015
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The committee met, pursuant to notice, at 9:31 a.m. in room
406, Dirksen Senate Building, Hon. James Inhofe (chairman of
the committee) presiding.
Present: Senators Inhofe, Barrasso, Capito, Boozman,
Sessions, Fischer. Rounds, Boxer, Carper, Booker and Markey.
OPENING STATEMENT OF HON. JAMES INHOFE,
U.S. SENATOR FROM THE STATE OF OKLAHOMA
Senator Inhofe. Our meeting will come to order.
Today's hearing is on the EPA's final rule regulating the
disposal of coal ash under the Resource and Conservation
Recovery Act. This is an important issue that cuts across the
committee's areas of jurisdiction from the regulation of waste
to the impact of EPA's other rules on electric utilities and to
the importance of coal ash to highways and infrastructure
projects.
EPA has extensively studied the safety of coal ash. For
decades, coal ash has been regulated by States as non-hazardous
waste. It is also worth noting that coal ash is an important
ingredient in concrete and helps extend the life span of and
control costs of the concrete used in roads and bridges. In
fact, many State Departments of Transportation require the use
of coal ash in their road projects.
In 2010, in response to a coal ash spill at the TVA's
Kingston, Tennessee power plant, EPA issued a proposed rule
containing two options for regulating coal ash, either
regulating as a hazardous waste, which would have imposed
unnecessary and burdensome cradle to grave requirements on the
generation, transportation and disposal of coal ash, or
continue to regulate it as a non-hazardous waste.
The EPA rule, finalized last December, correctly determined
that coal ash should continue to be regulated as non-hazardous
waste. It also established minimum, one size fits all standards
for the management and disposal of coal ash in landfills and
surface impoundments.
EPA's authority to regulate non-hazardous waste under RCRA
is limited. EPA's rule encourages States to incorporate the
minimum standards into their solid waste management programs.
EPA does not have the authority, under the current law, to
improve State permitting programs or to require facilities to
implement the rule's requirements. Instead, the rule's
requirements are enforceable only through citizen suits.
States and the affected utilities have raised significant
concerns with this approach and the possibility that they would
pay citizen suits even if they were in compliance with their
State's requirements.
Although the final rule agreed that coal ash is non-
hazardous, it left open the possibility that EPA would change
this determination in the future. This is causing unnecessary
uncertainty to the electric utilities troubled by this rule and
to the companies that use and recycle coal ash.
The House is currently considering legislation that would
clarify EPA's authority in the status of coal ash as a non-
hazardous waste. Although the coal ash issue has not received
much attention from the Environment and Public Works Committee
in recent years, it certainly warrants our attention and we
should be looking to get it right.
The EPA rule, which was published in the Federal Register
in April, goes into effect in October 2015. That is not much
time for States and affected utilities to fully analyze and
begin implementing the rule's technical standards.
[The prepared statement of Senator Inhofe follows:]
Statement of Hon. James M. Inhofe, U.S. Senator
from the State of Oklahoma
Today's hearing is on EPA's final rule regulating the
disposal of coal ash under the Resource Conservation and
Recovery Act.
This is an important issue that cuts across the Committee's
areas of jurisdiction--from the regulation of waste, to the
impact of EPA's other rules on electric utilities, and to the
importance of coal ash to highways and infrastructure projects.
EPA has extensively studied the safety of coal ash. For
decades, coal ash has been regulated as nonhazardous waste by
states. It is also worth noting that coal ash is an important
ingredient in concrete and helps extend the lifespan of and
control costs for the concrete used in roads and bridges. In
fact, many State Departments of Transportation require the use
of coal ash in their road projects.
In 2010, in response to a coal ash spill at the TVA's
Kingston, Tennessee power plant, EPA issued a proposed rule
containing two options for regulating coal ash: either regulate
it as a hazardous waste, which would have imposed unnecessary
and burdensome cradle-to-grave requirements on the generation,
transportation, and disposal of coal ash, or continue to
regulate it as a nonhazardous waste.
The EPA rule finalized last December correctly determined
that coal ash should continue to be regulated as a nonhazardous
waste. It also established minimum one-size-fits all standards
for the management and disposal of coal ash in landfills and
surface impoundments.
EPA's authority to regulate nonhazardous waste under RCRA
is limited. EPA's rule encourages states to incorporate the
minimum standards into their solid waste management programs,
but EPA does not have authority under current law to approve
State permitting programs or to require facilities to implement
the rule's requirements.
Instead, the rule's requirements are enforceable only
through citizen suits. States and the affected utilities have
raised significant concerns with this approach and the
possibility that they would face citizen suits even if they
were in compliance with their state's requirements.
Although the final rule agreed that coal ash is
nonhazardous, it left open the possibility that EPA will change
this determination in the future. This is causing unnecessary
uncertainty to the electric utilities covered by this rule and
to the companies that use and recycle coal ash.
The House is currently considering legislation that would
clarify EPA's authority and the status of coal ash as a
nonhazardous waste. Although the coal ash issue has not
received much attention from the EPW Committee in recent years,
it certainly warrants our attention and we should be looking to
get it right.
The EPA rule, which was published in the Federal Register
only in April, goes into effect in October this year. That is
not much time for states and affected utilities to fully
analyze and begin implementing the rule's technical standards.
We have an excellent panel of witnesses before us
representing a range of views on the rule's impact on states,
affected utilities, the public, and the beneficial use
industry. We have:
1) Alexandra Dunn is Executive Director and General Counsel
of the Environmental Council of the States;
2) Mike Kezar is the General Manager of the South Texas
Electric Cooperative and he is here on behalf of National Rural
Electric Cooperative Association;
3) Danny Gray is Executive Vice President of Charah Inc., a
coal ash marketer based in Kentucky and he is here on behalf of
the American Coal Ash Association;
4) Frank S. Holleman, III, a senior attorney with the
Southern Environmental Law Center; and
5) Nancy Cave, the North Coast Director of the Coastal
Conservation League in South Carolina.
I am especially interested in hearing their views on the
challenges in implementing the EPA rule, whether Congress
should consider legislation to give EPA authority to approve
State permitting programs, and ways to increase the beneficial
use of coal ash.
Senator Inhofe. We have an excellent panel of witnesses
before us representing a range of views on the rule's impact on
States, affected utilities, the public and the beneficial use
of industry.
We have: Nancy Cave, North Coast Director, Coastal
Conservation League in South Carolina; Frank S. Holleman, III,
Senior Attorney, Southern Environmental Law Center; Alexandra
Dunn, Executive Director and General Counsel, Environmental
Council of the States; Mike Kezar, General Manager, South Texas
Electric Cooperative, on behalf of National Rural Electric
Cooperative Association; and last, Danny Gray, Executive Vice
President of Charah Inc., a coal ash marketer based in
Kentucky, on behalf of the American Coal Ash Association.
I am especially interested in hearing their views. I might
mention to you, Mr. Kezar, I have had extensive personal
involvement with south Texas, the area there. I was a developer
down there for many years, so I know them.
Senator Boxer.
Senator Boxer. Mr. Chairman, could I have 15 seconds to
laud my Golden State Warriors?
Senator Inhofe. Of course. Yes, you may do that. I want
equal time for what is going to be happening to the Oklahoma
City Thunder. It is a surprise. Maybe I should not reveal it
here.
Senator Boxer. Mr. Chairman, I wanted to say how proud I am
of this team. Forty years ago, Stu and I had season tickets to
the Warriors, 40 years ago, and we saw them win. It took 40
years. Now I am leaving politics. Then I was just entering
politics.
It is a wonderful moment for us, those of us who have
rooted for the Warriors.
Senator Inhofe. Your 15 seconds has expired.
Senator Boxer. That is not fair. It is the Senate. We
cannot even breathe in 15 seconds.
I will close with this. I think we all can learn from
watching this team going against the greatest player in the
world how important teamwork is and how much can be done when
you have cooperation, as we do on highways.
Also, there was one more thing I was particularly proud of.
That is that short players really are good. I just wanted to
note that for my Chairman.
That is it. Congratulations Warriors.
OPENING STATEMENT OF HON. BARBARA BOXER,
U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Boxer. In today's hearing, we are examining the
EPA's first ever national standards for the disposal of coal
ash. I really believe this rule ought to have a chance to work.
I personally would have preferred that EPA issue a stronger
rule. I am on the other side of this. I think they should have
been tougher and stronger. I think they should have designated
coal ash as hazardous waste, but I do think the rule is first
step. Frankly, I am dismayed that there is legislation moving
through the House that attempts to weaken this rule even
further, just kind of throw it out if a State did not like it.
Coal ash is so dangerous because it contains many toxins.
No one really talks about this: mercury, arsenic and lead. If
you ask a person on the street, should there be a rule to make
sure this stuff does not get in front of my house in a spill or
into my water, I think they would say, isn't there one now? The
answer is no. Right now, many of these are treated like
household waste. We know these toxic materials cause cancer and
harm children's development, including brain development.
Coal ash is often stored in impoundments that are unlined
and located adjacent to rivers and lakes, where the toxic
substances leach into the groundwater and surface waters. In
the worst case scenario, these impoundments can break,
spreading toxic waste throughout communities. It is hard to
believe that it has been more than 6 years since the
devastating spill at the Tennessee Valley Authority's coal ash
pond in Kingston, Tennessee. We will show you a chart.
At 1 a.m. on Monday, December 22, 2008, an earthen wall
failed on a 40-acre surface impoundment holding coal ash. More
than one billion gallons of waste rushed down the valley like
an avalanche. These pictures were shown on the front pages of
most of the newspapers.
They covered more than 300 acres, destroying and damaging
homes, and polluting the Emory River. The volume of ash and
water was nearly 100 times greater than the amount of oil
spilled in the Exxon Valdez disaster.
In January 2009, I chaired an Environment and Public Works
Committee hearing on the TVA coal ash spill to explore how the
spill happened and how we can prevent events like this from
happening again.
I want to compliment TVA. They have spent over a billion
dollars cleaning up this spill and made the business decision
to convert all of their facilities from wet to dry handling of
coal ash. Good for them.
In the wake of the TVA coal ash spill, I called on EPA to
assess the hazards associated with coal ash ponds around the
Country. EPA identified 44 coal ash ponds in 10 States that
present a ``high hazard,'' meaning that if the pond were to
fail, it would pose a threat to human life.
EPA required facilities to submit corrective action plans
for those ponds that were found to pose a serious risk of
failure. Unfortunately, EPA relied solely on the States and the
utilities to follow through with the corrective action plans.
That was not enough. We need this rule.
Duke Energy's Dan River facility in North Carolina is one
example of a company not following through on a corrective
action plan. Duke Energy agreed in its corrective action plan
to monitor a metal stormwater pipe for signs of potential
failure. In February 2014, that very same pipe rusted out and
failed, spilling toxic coal ash into the Dan River, a source of
drinking water for communities in North Carolina and Virginia.
Since the spill, Duke Energy has pled guilty to criminal
charges involving its coal ash ponds. We should not have to get
to this point. We should prevent these things, not parade CEOs
and members of these utilities in front of the jailhouse.
A criminal investigation of the North Carolina State agency
charged with protecting public health and the environment is
ongoing. This is serious stuff. We are not helping the
utilities if we turn our backs on this rule. I think we are
harming these utilities. We ought to have a standard for
everyone that is good, decent and fair.
I do not have any coal in my State. Maybe I have a drop,
but very little. This does not impact me. I am not talking as
someone who is selfish who says my people are getting hurt. I
am talking as an American citizen who cares about all of our
children. While I believe we should have and could have done
more to address these dangers, this rule will go a long way to
protecting people from toxic coal ash.
I ask that the rest of my statement be put in the record.
Mr. Chairman, thank you for letting me talk about my
Warriors. Thank you.
[The prepared statement of Senator Boxer follows:]
Statement of Hon. Barbara Boxer, U.S. Senator
from the State of California
Today's hearing will examine the EPA's first ever national
standards for the disposal of coal ash. I strongly believe that
the EPA rule must be given a chance to work. While I would have
preferred that EPA issue a stronger rule--designating coal ash
as ``hazardous waste''--EPA's new rule is an important step
toward addressing the dangers of coal ash. I am dismayed that
there is legislation moving through the House that attempts to
weaken this rule even further.
Coal ash is so dangerous because it contains many toxins,
such as mercury, arsenic, and lead. These toxic materials are
known to cause cancer and harm children's development,
including brain development. Coal ash is often stored in
impoundments that are unlined and located adjacent to rivers
and lakes, where the toxic substances leach into the
groundwater and surface waters. In the worst case scenario,
these impoundments can break, spreading toxic waste throughout
communities. It is hard to believe that it has been more than 6
years since the devastating spill at the Tennessee Valley
Authority's coal ash pond in Kingston, Tennessee. At 1 o'clock
AM on Monday, December 22, 2008, an earthen wall failed on a
40-acre surface impoundment holding coal ash. More than one
billion gallons of waste rushed down the valley like an
avalanche, covering more than 300 acres, destroying and
damaging homes, and polluting the Emory River. The volume of
ash and water was nearly 100 times greater than the amount of
oil spilled in the Exxon Valdez disaster.
In January 2009, I chaired an EPW Committee hearing on the
TVA coal ash spill to explore how the spill happened and how we
can prevent events like this from happening again. TVA has
spent over a billion dollars cleaning up this spill and has
made the business decision to convert all of its facilities
from wet to dry handling of coal ash. TVA took this responsible
step to protect communities from future spills, and I commend
TVA for its actions. In the wake of the TVA coal ash spill, I
called on EPA to assess the hazards associated with coal ash
ponds around the country. EPA identified 44 coal ash ponds in
10 states that present a ``high hazard''--meaning that if the
pond were to fail, it would pose a threat to human life. EPA
required facilities to submit corrective action plans for those
ponds that were found to pose a serious risk of failure.
Unfortunately, EPA relied solely on the states and the
utilities to follow through with the corrective action plans,
which was clearly not enough.
Duke Energy's Dan River facility in North Carolina is one
example of a company not following through on a corrective
action plan. Duke Energy agreed in its corrective action plan
to monitor a metal stormwater pipe for signs of potential
failure. In February 2014, that very same pipe rusted out and
failed, spilling toxic coal ash into the Dan River, a source of
drinking water for communities in North Carolina and Virginia.
Since the spill, Duke Energy has pled guilty to criminal
charges involving its coal ash ponds. A criminal investigation
of the North Carolina State agency charged with protecting
public health and the environment is ongoing.
The EPA rule will provide critical public health
protections, including groundwater monitoring, cleanup
requirements, transparency, and preservation of each citizen's
right to protect their community from coal ash pollution. For
the first time, utilities will have to test the groundwater
surrounding their coal ash ponds and post that information
online. This will allow citizens to know what is in their water
and help prevent pregnant women and children from drinking
groundwater that is contaminated with toxins. While I strongly
believe EPA should have done more to address the dangers of
coal ash, EPA's rule will go a long way to protecting people
from toxic coal ash in the future.
Legislation being considered in the House of
Representatives would delay many of the rule's new health and
safety protections, including the rule's mandate to close
inactive coal ash ponds. It would also eliminate public access
to information about coal ash ponds and remove the rule's
national minimum standard for protection of health and the
environment, allowing State programs to eliminate critical
safety requirements. It is important that this new rule not be
diluted by Congress. EPA should be allowed to move forward with
critical new protections for the safety of our communities.
Senator Inhofe. Of course, without objection.
We will now hear from our witnesses. We will start with
you, Mr. Holleman, and work across the room.
Try to keep your remarks down to 5 minutes. Your entire
statement will be made a part of the record.
Mr. Holleman.
STATEMENT OF FRANK S. HOLLEMAN, III, SENIOR ATTORNEY, SOUTHERN
ENVIRONMENTAL LAW CENTER
Mr. Holleman. Chairman Inhofe, Senator Boxer and members of
the committee, thank you for listening to me today and inviting
me here.
My name is Frank Holleman. I live in Greenville, South
Carolina. I am at the Southern Environmental Law Center. We
work with local citizens in the south who are concerned about
their communities' futures and about clean water.
Let me ask you to assume something for a minute. Assume
that a Washington lobbyist came to your office with this
request. We have a plan and we want you to support a bill that
will help us make it easier to do.
We have property on the banks of drinking water reservoirs
and rivers across the United States. We want to dig big,
unlined holes right next to these drinking water reservoirs and
rivers. We will dump millions of tons of industrial waste into
these unlined pits next to these water bodies. By the way, you
should know this waste contains things like arsenic and lead.
Then we are going to fill these big pits with water and we
are going to hold these lagoons, industrial waste lagoons, back
from our rivers and drinking water reservoirs only by dikes
made of earth that leak. Will you help us?
I can imagine your reaction, but that is exactly what the
trade associations are asking you to do by seeking to weaken or
eliminate the EPA rule.
As Senator Boxer pointed out, in the south we have seen
dramatic harm from primitive coal ash disposal. We have had two
catastrophes, TVA at Kingston and Duke Energy on the Dan River.
In North Carolina today, the State is testing drinking
water wells near Duke Energy's coal ash site. Over 90 percent
of the well owners have been told to stop drinking the water.
In South Carolina, where I live, groundwater has been
contaminated with arsenic at hundreds and hundreds of times the
legal limit. Across the region, unlined pits are leaking into
rivers and lakes at the rate of millions of gallons per day.
In adopting this rule, as was pointed out, the EPA accepted
the key demands of the utility and recycling industries. But
the rule establishes some uniform, minimum standards, provides
communities with information about local coal ash pollution,
and preserves a citizen's right to enforce the law when State
bureaucracy simply will not do it.
From what we have seen in the southeast, it is clear State
agencies have not effectively enforced the law against these
very politically powerful monopolies. In South Carolina where I
live, for example, for years unlined coal ash disposal violated
anti-pollution laws. There was no question about it. Yet the
government had not taken action to force a cleanup.
Local organizations like Nancy's collected unpublicized
information and enforced the law with the result that all three
utilities in the State are cleaning up every one of their
unlined riverfront coal ash disposal sites. One utility, Santee
Cooper, says the cleanup we pushed for is a win-win for
everyone.
In North Carolina, no one was forcing Duke Energy, as
mentioned earlier, to clean up its coal ash. Again, local
organizations uncovered unpublicized information and took
action to enforce the law.
For the first time, the State government was forced to
confirm that Duke Energy is violating the law everywhere it has
stored coal ash in the State of North Carolina and confirmed
that under oath.
I have been a Duke customer my whole life. Duke Energy is
the Nation's largest and richest utility. It has now pleaded
guilty to nine coal ash crimes committed in its home State. Two
of those crimes led directly to the Dan River spill.
Despite repeated warnings over almost 30 years that it was
risky to have a corrugated metal pipe under a coal ash lagoon,
Duke Energy management turned down requests from its own people
to spend a few thousand dollars to inspect the pipe that later
broke. The State never required the inspection.
Now Duke Energy has pleaded guilty, has to pay $102
million, is on nationwide criminal probation and is cooperating
in a continuing investigation of the State agency. They are
supposed to be enforcing the law.
In summary, Mr. Chairman, in the south, we need the minimum
protections of the EPA rule so that we will have clear
standards for coal ash disposal, the people will have
information they need about threats to their own communities,
and the communities themselves will be able to protect
themselves when bureaucracies will not do it.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Holleman follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Inhofe. Thank you, Mr. Holleman.
Ms. Cave.
STATEMENT OF NANCY CAVE, NORTH COAST DIRECTOR, COASTAL
CONSERVATION LEAGUE
Ms. Cave. Good Morning. I am Nancy Cave, North Coast Office
Director of the South Carolina Coastal Conservation League, an
environmental advocacy organization.
I want to thank you, Chairman Inhofe, Senator Boxer and
members of the committee for giving me this opportunity to
testify today.
I live and work in South Carolina. South Carolina, like
other States, has not protected its citizens from the harmful
impacts of coal ash. South Carolina's regulatory program has
failed. For years we have not been informed of toxic
groundwater pollution and illegal activity. The State has
turned a blind eye to utility violations, and State regulators
have taken no effective action to clean up these dangerous
sites.
The EPA's final rule is a critical first step. The rule
gives people access to necessary information to decide how best
to protect their health and well being, and the rule ensures
citizens the right to enforce the law, even if State regulatory
safeguards are not enforced, are diminished, or are
nonexistent.
In Conway, South Carolina, it was the State's owned
utility, Santee Cooper, that blatantly endangered the safety of
its own customers. At the utility's Grainger coal-fired
electric generation plant, 1.3 million tons of coal ash fills
two unlined ponds adjacent to the Waccamaw River, which
provides drinking water to communities up and down its banks.
Since the 1990's, Grainger's leaking coal ash ponds have
been releasing arsenic into groundwater at levels as high as
300 times the State's drinking water standard. The South
Carolina Department of Health and Environmental Control, the
agency responsible for public health and safety, has been aware
of this arsenic pollution for years. Yet they have neither
informed the public nor done anything to stop it.
In 2012, Santee Cooper closed the Grainger plant with plans
to leave the toxic coal ash sitting where it was, in pits next
to the river. When the Grainger Closure Plan was publicly
released, I worked quickly to inform people of the coal plant's
years of health-threatening arsenic pollution.
Following multiple public meetings and a presentation that
I gave to the city council, the city of Conway passed a
resolution calling on Santee Cooper to remove the coal ash. At
the same time, the Coastal Conservation League and other
community groups used a State statute that allowed citizen
enforcement when the State bureaucracies failed to act.
Santee Cooper asked for dismissal, but the judge refused.
The State-owned utility agreed to negotiate. Today, Santee
Cooper is removing and relocating all of Grainger's 1.3 million
tons of coal ash.
It was the citizens' actions that forced Santee Cooper to
take the protective action of removing the coal ash. The State
did not step in to force protection and the local government
did not have jurisdiction.
South Carolinians near Duke Energy's Robinson coal plant in
Hartsville, face similar threats. The Robinson plant was opened
in 1959. Its 55-acre open, unlined coal ash pit, dug from
porous sandy soil, is adjacent to Lake Robinson, one of the
area's most popular recreational lakes.
Today, 4.2 million tons of coal ash extends 18 feet into
the groundwater table. Test well results have shown groundwater
arsenic levels at 1,000 ppb, over 100 times the legal limit. As
more information was made public, Hartsville citizens wanted
action. Duke Energy balked, but on the morning of April 30
before a public meeting was organized, Duke Energy announced it
would remove and relocate the coal ash.
This announcement was the direct result of public pressure
and possible citizen action. Transparency, information and
protective action as required by EPA's final rule must not be
removed or diminished.
The rule, as written, is our only line of defense against
utilities that have demonstrated they are unwilling to take
responsibility and affordable actions to safely dispose of
their toxic waste. The final rule is our only line of defense
against States that have demonstrated they are unwilling or
unable to protect their citizens.
Thank you.
[The prepared statement of Ms. Cave follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Inhofe. Thank you, Ms. Cave.
Ms. Dunn.
STATEMENT OF ALEXANDRA DUNN, EXECUTIVE DIRECTOR AND GENERAL
COUNSEL, ENVIRONMENTAL COUNCIL OF THE STATES
Ms. Dunn. Good morning, Chairman Inhofe, Ranking Member
Boxer, and members of the committee. I am Alexandra Dunn,
Executive Director and General Counsel of the Environmental
Council of the States.
We are the national non-profit association of U.S. State
and territorial environmental commissioners who have been
referenced as perhaps not doing the most effective job as
possible. I would like to give you some thoughts on the State
role in implementation of CCR regulations.
There has been so much dialog over so many years on CCR
management and surface impoundments. What I am able to bring
you today is something that is unusual in the environmental
world days, something that all 50 States agree upon and how we
should regulate.
You cannot find that in water, you cannot find that in air
these days, but you can find it in coal combustion residuals.
We have a position going back to 2008 that is supported by all
50 States.
States are well familiar with the cases that you have heard
about, the devastating environmental property damage and human
health impacts that coal releases can cause. They do a mission
to serve the public and protect water supplies and to regulate.
Because it has taken so long for there to be a Federal
rule, many States have programs to permit these facilities, to
oversee them and to regulate them. We have had many
opportunities where States have been sharing best practices
with one another, helping each State improve its program by
learning from its neighbors and States in other parts of the
Country.
Now we have a final Federal rule which States do not
oppose. We actually think the final Federal rule is quite good.
It reflects a lot of strong research by the agency. However,
there is an implementation problem with the final rule and a
lack of flexibility that we would like hopefully this committee
to help us address.
First, I should say on the determination that it is non-
hazardous waste coal ash, we support life cycle management of
waste in this Country. There are tons and tons of coal ash. The
more coal ash that can be put into wallboard and roads and
reused means there is less coal ash in the ponds. That is
important. We do support the finding under Subtitle D.
Unfortunately, under RCRA, that puts us in a bit of a
complex situation. It means that we have a self-implementing
rule. The Federal legislation can help address that. Let me
give you a bit more context.
By moving with Rule D under RCRA, we now have a waste that
is a solid waste, not a hazardous waste. That means that States
are in the primary role of regulating it.
Unfortunately, the final rule does not really reflect some
important State-specific considerations that a State program
would have like looking at the hydrology, the underground
soils, the topography, and what types of liners might be
needed. States have unique elements of their programs that the
Federal rule is unable to recognize.
We would like to see a rule that can be delegated to the
States like many other environmental programs are so that the
States can implement the most stringent provisions, whether the
Federal provision or the State provision, but there is a single
regulatory system.
Because of RCRA structure, we have a duplicative regulatory
system. We now have the self-implementing Federal rule and then
we have all the existing State programs. That is going to put
the regulated facilities and actually the citizen groups in a
bit of a complex quandary. They are going to have compare and
contrast the existing State programs to the Federal rule,
trying to figure out which ones are more stringent, which
provisions should be followed and then look at citizen suits as
an enforcement mechanism.
We recognize that citizen suits play an important role, but
we do think that States play an important role in enforcement
as well. The structure of this rule really puts the States a
bit on the sidelines. It puts the citizens in a good position
but maybe not the best position given the expertise at the
State level that will not be recognized by a citizen-driven
enforcement mechanism.
We really think that regulatory clarity is key in all
environmental programs. Much of the litigation with which we
are all familiar in the environment is because there is a lack
of clarity. We need to know who is in the lead. Right now, we
have a Federal program and State programs and it is not clear
who is in the lead. We essentially have a duplicative
structure.
We feel the best way to move forward is to ask this
committee to consider legislation to amend RCRA to allow State
permitting programs to operate in lieu of the Federal program,
but to incorporate elements of the Federal rule that are
appropriate.
Only through legislation can this occur. The House has
moved forward, as you have heard, with a bill. We think their
approach is generally workable and time is of the essence.
There are a variety of approaches and we know this committee
may be considering alternative approaches to the House.
We are willing to work with you on that but the goal should
be to eliminate a duplicative regulatory system. That is an
important public policy goal. It benefits the communities,
citizens, States, taxpayers and the public.
Thank you very much.
[The prepared statement of Ms. Dunn follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Inhofe. Thank you, Ms. Dunn.
Mr. Kezar.
STATEMENT OF MIKE KEZAR, GENERAL MANAGER, SOUTH TEXAS ELECTRIC
COOPERATIVE, ON BEHALF OF NATIONAL RURAL ELECTRIC COOPERATIVE
ASSOCIATION
Mr. Kezar. Good morning. My name is Mike Kezar. I serve as
the General Manager of South Texas Electric Cooperative or
STEC. I appreciate the invitation to appear before the
committee today on behalf of STEC and the National Rural
Electric Cooperative Association to discuss the need for
legislation to supplement EPA's regulation of coal combustion
residuals, CCRs.
STEC is a non-profit electric cooperative that serves over
180,000 rural members in 42 south Texas counties. NRECA is a
national service organization dedicated to representing the
national interests of cooperative electric utilities and the
consumers they serve, including more than 900 not for profit
rural electric utilities providing electricity to over 42
million people in 47 States.
STEC relies on a variety of energy sources, including
hydroelectric, wind, natural gas, and a lignite power plant
located in Atascosa County, Texas called the San Miguel Plant.
I am deeply familiar with the San Miguel lignite plant because
prior to becoming the general manager of STEC, for 33 years I
served in various capacities at San Miguel including 6 years as
its general manager.
The San Miguel power plant is a well-controlled power plant
and has been a long and active participant in the development
of CCR regulations primarily as a member of the Texas Coal
Combustion Products Coalition. San Miguel has beneficially used
CCRs for decades and continues to assess expanded use markets
for CCRs.
STEC supports the EPA's decision to regulate CCRs as a non-
hazardous waste under Subtitle D of RCRA in its CCR rule. There
are two things, however, that EPA's final rule did not
accomplish in the end which warrant legislation as soon as
possible. Stated another way, EPA's rule needs a couple more
tools in its CCR toolbox for its regulation of CCRs to be as
effective and reliable as possible.
First, regulatory certainty for CCR beneficial use markets
is needed in the form of a legislative, non-hazardous
determination to allay concerns that a hazardous determination
could still be in the cards given that EPA's final rule merely
defers the question.
Second, EPA needs the statutory clarity of new legislation
to give EPA and the States the ability to oversee CCR
management through federally approved State permit programs.
Although EPA's decision to regulate CCRs as non-hazardous was
the right one, its decision to defer until a future date
whether hazardous regulation might be pursued in the future
leaves the CCR beneficial use market in a very uncertain
posture.
The risk of potential future hazardous regulation makes the
type of capital investments necessary to maximize the
beneficial use of CCRs very hard to justify, given the market
disruption that would result from the stigma associated with
hazardous waste classification down the road. Legislation that
would establish as a matter of statutory law that regulation of
CCRs will occur under nonhazardous authorities and that
hazardous regulations are not on the horizon would bring
certainty to the beneficial use market and facilitate greater
investments in beneficial use projects.
In addition to the certainty the legislation can bring to
beneficial use markets, legislation is also needed to fill key
gaps in EPA's current statutory authority so that it can
implement a permitting program that will be much more
comprehensive, science-based and enforceable than the current
CCR rule.
In contrast, the unprecedented nature of the current self-
implementing model, a State and Federal permit approach like
that utilized for municipal solid waste would allow EPA to both
set the minimum standards and retain direct approval and
enforcement authority while allowing for States to develop and
implement risk-based environmental standards that are tailored
to site-specific environmental conditions.
Without legislation, facilities like San Miguel are left
open to regulatory uncertainty and potentially extreme
litigation costs. Under the current rule, nothing a State or
even EPA says about a regulatory question that San Miguel might
have will trump an ad hoc decision by a Federal district court
judge in the context of a citizen suit.
In every other environmental compliance program area, San
Miguel can reliably turn to State or Federal environmental
agencies to secure permits, work through highly technical risk
management approaches and assure that it protects human health
and the environment in a site-specific and reliable fashion.
Every day that passes is another day closer to October 14,
2015, the effective date of the CCR rule. Already facilities
like San Miguel are exposed to regulatory uncertainty for both
beneficial use investments and compliance costs associated with
EPA's CCR rule.
Please act soon so rural electric cooperatives can utilize
and focus our limited resources on compliance rather than
litigation defense. Thank you for the opportunity to appear
before you today and to submit the more detailed comments and
attachments that have been provided in writing to the
committee.
[The prepared statement of Mr. Kezar follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Inhofe. Thank you, Mr. Kezar, exactly 5 minutes.
Mr. Gray.
STATEMENT OF DANNY GRAY, EXECUTIVE VICE PRESIDENT, CHARAH INC.
ON BEHALF OF THE AMERICAN COAL ASH ASSOCIATION
Mr. Gray. Good morning, Chairman Inhofe, Senator Boxer and
members of the Committee. My name is Danny Gray. I am Executive
Vice President of Charah, Inc., one of the Nation's leading
managers of coal combustion byproducts.
I also represent the American Coal Ash Association, ACAA,
an organization that champions the beneficial use of coal ash
as a preferable alternative to disposal.
Thank you for the opportunity to testify regarding one of
America's best recycling success stories and how that success
depends on regulatory certainty. There are few other issues
where the environmental mission of this committee intersects so
directly with its public works mission. By encouraging the safe
and responsible use of coal ash in our Nation's infrastructure,
we reduce coal ash disposal while creating infrastructure that
is more durable and environmentally sustainable.
There are numerous reasons to view coal ash as a resource
rather than a waste. Beyond the conservation advantages gained
when using coal ash minerals to manufacture products, the
products improve the quality of the finished product or goods
such as highway pavements while reducing production cost.
The environmental and performance benefits of coal ash
utilization are most pronounced in the public sector projects.
This sector consumes approximately one-third of all the
concrete poured in the United States because coal ash improves
the strength and durability of concrete. Its use has become
ubiquitous in the construction of roads, bridges, runways,
dams, water treatment facilities and a variety of other
infrastructure projects.
In 2011, a study by the American Road and Transportation
Builders Association found without coal ash in the construction
of transportation projects, the cost to build roads, runways
and bridges would increase by an estimated $104.6 billion over
20 years.
These benefits are not limited to States where coal is
mined or consumed to generate electricity. For instance,
California was an early adopter and a leader in the use of coal
ash in concrete public works projects, despite the fact that no
concrete specification quality coal ash is produced in the
State.
Caltrans requires the addition of coal ash in concrete
pavement in order to mitigate reactive aggregates and improve
the long-term durability of the concrete. California's ash is
supplied by power plants in Arizona, Utah, Wyoming and as far
away as Texas, all by rail.
Charah and ACAA appreciate EPA's final decision to regulate
coal ash as a non-hazardous material. We believe this decision
puts science ahead of politics and helps clear the way for
beneficial use to begin growing again.
However, we are painfully aware that EPA has made the final
coal ash decision before only to reverse the course in the
future. A hazardous versus non-hazardous debate occurred prior
to the agency's 2000 final regulatory determination which 8
years later turned out to be not so final.
Additionally, the 2015 rule's preamble states that the rule
defers to final Bevill determination. We feel that 34 years of
study, two reports to Congress, two formal regulatory
determinations and a final rule issued after 6 months in a
rulemaking process all confirming that coal ash does not
warrant hazardous waste regulation should be enough to declare
the issue resolved and make the final rule truly a final
decision. This would provide the long term certainty to the
beneficial use industry that science says is warranted.
Bills previously passed by the House of Representatives and
H.R. 1734 now under review would resolve this issue
permanently. These bills would put primary enforcement
responsibility and authority in the hands of professional State
regulators and create new authority for EPA to step in if
States do not do their jobs.
In conclusion, despite the changing landscape in American
electricity generation, our Nation will continue to produce
large volumes of coal ash for the foreseeable future. Decades
of ash storage represent a future opportunity to reclaim valued
mineral resources for beneficial use if proper regulations are
in place.
Developing the capability to use more coal ash requires
investment in processing facilities, ash storage and
distribution facilities and transportation assets. Attracting
the necessary investment requires real long term final
regulatory certainty that legislation can provide.
It is important to keep beneficial use at the forefront of
U.S. coal ash management policy to ensure we utilize this
unique mineral resource in building more durable
infrastructure. The best solution for coal ash disposal
problems is to quit throwing it away.
The best roads, bridges, runways and dams are built with
coal ash as an ingredient. Here we have the opportunity for a
true win-win for America's environment and public works.
Thank you.
[The prepared statement of Mr. Gray follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Inhofe. That is an excellent statement. Thank you,
Mr. Gray.
I assume you think they made the right call on the
determination of non-hazardous when they made that
determination?
Mr. Gray. Yes.
Senator Inhofe. You spent a lot of your time talking about
transportation infrastructure. It could not be more timely here
and now, because we are now marking up on the 24th, next week,
the transportation reauthorization bill, a 6-year and very
extensive bill.
I look at that and at the statement you just made. You
already talked about the importance of coal ash in road and
infrastructure projects. If you are talking right now about
contracts starting to be let, could this be a problem if this
changed and they were not able to use the coal ash as it is
being used today? Could this affect people making
determinations right now on contracts?
Mr. Gray. It could. As we all know, coal ash is a
substitute for cement in the manufacture of ready mix concrete.
It is exempted under the current rules under Subtitle D.
However, the State DOTs have a certain amount of
uncertainty right now in terms of the reliability of supply
going forward and whether or not sufficient quantities of good
quality coal ash will be available. They view it as a resource.
Coal ash was used in the manufacture of concrete for many, many
years prior to the environmental benefits being recognized.
Senator Inhofe. You also mentioned some of the discussions
in the House would rectify that, would take out some of the
uncertainty, correct?
Mr. Gray. Yes.
Senator Inhofe. Tell us the challenges States are expecting
to have? We are talking about October as a date. Is that going
to be enough time? What kind of problems will there be because
you are rushing into something that is unknown at this time?
Ms. Dunn. Under the final rule, States need kind of a work-
around. Because the program cannot be delegated, they are asked
to open up and amend their State's solid waste management
plans, reference the final rule in the State's solid waste
plans, and get those approved by EPA.
There is really no process in place for that. We are not
sure how long it would take the agency to do that. We also do
not know how long it would take States to actually go through
the process of updating their State solid waste management
plans.
If we follow the process in the rule, we are probably
looking at a year to 18 months to get to final approval by EPA.
That is why we believe a program that would allow things to be
delegated to the States through a permitting program is a more
effective use of probably the same amount of time.
It would take States about 18 months to put a new
permitting program in place, but instead of having this kind of
shaky foundation of an EPA approved State plan, which has no
legal standing at all, you would have an actual delegated State
implemented program which is much more sound.
Senator Inhofe. Mr. Kezar, under the current law, the EPA
does not have the authority to approve State permitting
programs for coal ash disposal and the technical requirements
in the EPA's rules are enforceable only through citizen suits.
Do you think this makes sense or would it be better for
electric utilities and coops if Congress enacted legislation to
address this? Is this addressed in what is being proposed in
the House right now?
Mr. Kezar. To answer your question, yes, it would be very
desirable for the coops and the utilities to have that
certainty. It is my understanding that is being addressed in
the House bill.
The concern we have is, although as Alexandra said, States
will submit their solid waste management plan to EPA for review
and approval, that still does not allow the State to operate a
permitting program in lieu of the Federal guidelines. It
creates a situation where you have potentially duplicative and
possibly conflicting oversight at the Federal and State levels.
We believe the program that exists under all other
regulatory environmental schemes whereby the State submits a
plan, EPA approves it and then the State implements that
program in lieu of the Federal program, the EPA establishing
the minimum requirements, is far preferable.
Senator Inhofe. Last, Mr. Gray, your organization does
represent interests of the recycling industry. Tell me what
would happen to the recycling industry in the event they change
that from non-hazardous to hazardous?
Mr. Gray. In order to have access to raise money for
capital to invest in the projects to enhance and grow the
recycling side of the business, we need certainty and we need
the material to be labeled properly as a non-hazardous
material.
For us, the key is being able to make long-term investments
in order to get the assets, the processing equipment in order
to make ash usable in concrete, and process that ash if
necessary for these long term contracts and long term
investments.
Senator Inhofe. We hear the term uncertainty quite a bit up
here. This is one of the problems out there with a lot of the
rules and regulations.
Senator Boxer.
Senator Boxer. I ask unanimous consent to place in the
record a letter from 290 public interest groups led by the
nurses who support the rule who oppose the House bill that a
lot of you have mentioned.
Senator Inhofe. Without objection.
[The referenced information follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Boxer. Thank you.
Mr. Gray, you are absolutely right. In California, we
really want to use this coal ash and we use it. What we do not
want in our State is to see this, we do not want to see the ash
stored in a way where it can explode and be like a landslide
and have someone open their front door and this is what they
see. I know you do not want it either. I know that.
The question is, how do we assure that this never happens?
Duke Energy said they would do the right thing. They did not do
the right thing. It is most unfortunate and now there is a
criminal probe, am I right, Mr. Holleman?
Mr. Holleman. That is correct.
Senator Boxer. I do not want to see that. I would say, Mr.
Kezar and Ms. Dunn, I do respect your view with the duplicative
situation. I have asked my staff, this is really not that
different from so many other laws where we do not have time to
talk to you about it.
Whether it is the Clean Water Act or the Safe Drinking
Water Act, there are minimum Federal standards. We love it if
the State wants to go further. I would love to work with you.
If you want to talk about permitting, I would be happy to work
with you to make that fix if necessary.
Ms. Cave, in your testimony, you describe how the unlined
coal ash ponds at the power plant in your community had been
leaking arsenic into the groundwater and was a threat to the
Waccamaw River which supplies drinking water to you and your
neighbors. What was the reaction of your community when they
found out the coal ash pond was leaking arsenic into your
drinking water supply? Was the call for the power company to
remove the coal ash ponds from the river bank supported by the
entire community?
Ms. Cave. To say the least, when we learned that the coal
ash was leaking arsenic, there was great concern. I get my
drinking water from the Waccamaw River. It was an education. As
people became educated as to what was happening, they became
first greatly concerned, and then angry. Why would the State-
owned utility endanger its own customers? Why haven't they done
anything and why didn't the State do anything to stop this?
Senator Boxer. I am going to interrupt you because of time.
I am assuming you support the part of the rule that says there
has to be public disclosure?
Ms. Cave. Absolutely.
Senator Boxer. It is really important for the people who
are supporting the House bill. They do not allow public
disclosure. It is very complicated. That is something I would
hope we could all agree on.
If my kid is living along a river and arsenic is in there
or lead and can damage their brains, I would sure like to know.
Mr. Holleman, during the rulemaking process, EPA confirmed
157 cases where coal ash disposal has caused damage to peoples'
health and the environment. EPA expects that additional damage
cases will be identified in response to the installation of
groundwater monitoring required under the rule.
You have looked at a lot of coal ash disposal sites. What
does monitoring data at coal ash sites show regarding
contamination?
Mr. Holleman. It shows shocking levels of contamination
that the community becomes very concerned about once they learn
about it. As Nancy pointed out, right in the center of Conway,
right next to the city marina, the levels of arsenic in the
groundwater have reached 300 times the legal limit.
In North Carolina, just recently, the State has begun
testing all the drinking water wells around these coal ash
sites. Over 90 percent of the people who have been using these
wells for years have now been told to stop drinking their
water.
Senator Boxer. I am going to stop you there. You believe as
this monitoring continues, we are going to find more problems
in these communities?
Mr. Holleman. Yes, and that is what we have seen over the
last 4 years.
Senator Boxer. Any effort to stop that is a strike against
our families, in my opinion. This is not about Democrats or
Republicans. This is about our families.
My last question is to you, Ms. Dunn. As an adjunct law
professor and an attorney, you have written and taught on the
subject of environmental justice. In their comments to EPA on
the proposed coal ash rule, environmental justice organizations
noted that 70 percent of coal ash dumps are located in low
income, disadvantaged communities.
Do you agree these communities deserve to know if coal ash
ponds are leaking toxic substances into their drinking water?
Do you think they have the right to know what is in their
drinking water? Why would you support a House bill that really
limits the right to know?
Ms. Dunn. We absolutely support transparency and are
working very hard with EPA to look at data bases. I believe
requirements in the rule would have Internet posting of this
type of information.
Senator Boxer. The rule is fine. You say you support the
law in the House.
Ms. Dunn. Generally.
Senator Boxer. You generally support. I hope you will go
after the parts because you have lived your life fighting for
environmental justice. People need to know.
Ms. Dunn. State regulators believe in transparency.
Senator Boxer. I am glad they do but this bill limits the
right to know. That is outrageous. I do not care who you are or
what side of the issue you are on.
Thank you.
Senator Inhofe. Senator Fischer.
Senator Fischer. Thank you, Mr. Chairman.
Ms. Dunn, I certainly agree with you when you talk about
the States being very diverse and very unique. Even within
States, there is such diversity that I believe the best
solutions are made at the local level, at the State level,
because they understand that uniqueness within their own
boundaries.
I also agree with your comment that this now puts States on
the sidelines because the citizen suits are the only mechanism
that is provided for enforcement of the rule.
Could you please go into more detail on the potential
impact these suits would have for utilities, for agencies, but
ultimately on American families. What is the impact there?
Ms. Dunn. I believe that we really need to think about how
we are spending our resources. We heard from the witnesses that
citizen groups can bring concerns of the community to
regulatory agencies' attention. That is fully appropriate.
Then I think we need to think about what is the best way to
resolve those concerns. State regulators have the ability to
work collaboratively with industry, to work in a less
collaborative way, a more enforcement-oriented way. But this
rule takes that power sort of away and really puts it in the
role of pure citizen suit, leaving the State expertise on
monitoring, on gathering information on the science and on what
type of technical requirements would make sense for that
facility to add the protection the citizens want.
The State becomes a side player as opposed to a primary
player. We believe if the States could take the technical
requirements of EPA's rule as the minimum standards, as they
often do in Federal programs that are delegated, add the State
specific requirements that are more intense or stringent for
the special State conditions, we can then have a very good,
effective program.
States already have effective programs. Now what we have is
an overlaying Federal program with the only enforcement in
EPA's own words being by citizen suits. It is an odd structure.
Senator Fischer. I think there would be more accountability
and more transparency at the State level as well. When you have
a government that is closer to the people and to be able to be
on the ground and be available for citizens, I just think we
would be able to have more accountability. Do you agree with
that?
Ms. Dunn. I do, and we can always find the egregious cases,
those who work in environment. There are always going to be
those cases that surprise us, that show a lack of effectiveness
of the existing regulatory system.
The majority of the facilities in the Country, there are
over 200 of them in 33 States, are not having the catastrophic
incidents we have heard a little bit about today. There will
always be those that take us by surprise.
Senator Fischer. We need to address those.
Ms. Dunn. We do need to address them. I do not think we are
saying that we should not. It is a failure on all parts,
Federal, State and the citizens to have those incidents occur.
I do not think that means that States are incapable of
effectively regulating these facilities well and at the ground
level.
Senator Fischer. Thank you.
Mr. Gray, you talked about recycling of coal ash. Can you
explain the effects on the willingness of customers to use that
coal ash in their products if we do not have certainty on how
the EPA is going to classify it?
Mr. Gray. Certainly customers that use ash are cognizant of
whether people refer to it as hazardous or non-hazardous and
the negative image that would come with using the hazardous.
We all know using fly ash in concrete is one of the best
places you could put it, regardless of what label you place on
it. That is the best place you can put fly ash because it
improves the quality of the concrete, it saves the customers
and the citizens of the United States money because concrete is
less expensive for everyone.
Senator Fischer. Mr. Kezar, when you talk about the utility
and the challenges you face there, when we are not seeing that
certainty with the decision made by the EPA on if this is a
hazardous or non-hazardous material, what is the economic
impact of that? How is that going to impact utilities?
In Nebraska, we happen to be 100 percent public power. As
citizens of the State, we are affected by the impact on the
utility. We are also impacted as taxpayers and as citizens, as
consumers. How are we going to make sure that utilities can
have reliable and affordable electricity when there is so much
uncertainty out there?
Mr. Kezar. As public power, electric coops do not have a
profit motive, so our concern is providing reliable and
affordable power to our members, many of whom are below the
poverty level or on fixed incomes. San Miguel entered into a
partnership with Boral, one of the members Mr. Gray would
represent, to install and at Boral's capital cost, facilities
to classify ash to be used for beneficial road projects
throughout the State. Boral made that investment based upon
their understanding of the rules as they went forward.
The Texas Department of Transportation tested the ash based
upon their understanding of the rules as they existed and
entered into use of that ash on road projects. A change in
classification would put a chill on both of those entities, I
would think.
From a personal perspective, as the manager of a facility,
I would feel very uncomfortable managing a product outside the
facility that later would be determined to be hazardous. That
would give me a great deal of concern. It would be a problem.
The safer course, quite honestly, would be to dispose of it
locally rather than beneficially reuse it.
Senator Fischer. Of course the question is, what do you do
with it? My time is up but that is the looming question out
there. If we are not able to make good use of a non-hazardous
product that is beneficial, what happens?
Thank you.
Senator Inhofe. Thank you, Senator Fischer. Senator Markey.
Senator Markey. Thank you, Mr. Chairman.
The lack of a uniform Federal standard requiring the safe
disposal of coal ash has resulted in over 200 cases of water
contamination in addition to major, major spills. For the first
time, the EPA has issued a Federal rule that would govern the
disposal of toxic coal ash, after a 5-year long, stakeholder
process, EPA has issued a rule that would be put in place in
October of this year. Although the EPA rule is not as robust as
what I or many others would have liked, it does, for the first
time, create a Federal standard to protect human health and
environment.
Mr. Gray, you testified in support of the House bill that
would give enforcement responsibility and authority over coal
ash disposal to the States. Is it not true that under the House
proposal, household waste could be regulated more stringently
than coal ash in some or all States, since there is an existing
Federal floor on how stringently household waste should be
regulated, but the House bill does not have a Federal floor for
how stringently coal ash waste should be regulated? Is that not
accurate?
Mr. Gray. The House bill incorporates the EPA minimum
standards and would basically establish the same sets of
national guidelines for managing coal ash. Those standards
would apply as a part of the House bill if it were passed.
Senator Markey. But there is no uniform enforcement, Mr.
Gray.
Mr. Gray. The bill we are supporting would give the
enforcement to the States and would give EPA the right to step
in, which is not there under Subtitle D as of today. It would
give the EPA additional power to step in and take over if the
States did not enforce. We feel the enforcement is sufficient.
Senator Markey. Mr. Holleman, do you agree with that?
Mr. Holleman. No, Senator, of course I do not agree with
that.
Senator Markey. Make the case, Mr. Holleman.
Mr. Holleman. The whole point of the House bill from the
industry viewpoint is to eliminate or weaken those national
standards and leave it to the States who have in the past
simply refused and failed to effectively enforce the law to the
extent that one of the State agencies has been investigated by
a Federal criminal grand jury.
As you say, the new rule does not go as far as it might
have, but at least it puts in place some minimum national
standards which we are familiar with in virtually every area of
the economy. This would not be unique or anything different.
The States then are free to expand on it, as Senator Boxer
said, and enforce their own rules that are in excess of these
rules if they want to.
Senator Markey. A company in central Illinois used coal ash
to fill a ravine for a decade ending in 2005. Runoff draining
and leaching from the ash-filled ravine contaminated nearby
drinking water wells with arsenic, chromium, lead and other
toxic chemicals. Is it not true that there is nothing in the
House bill that would prohibit disposal of coal ash directly
into drinking water aquifers?
Mr. Holleman. Yes, it is my understanding in the last
version of the House bill, prohibition in the EPA rule was
taken out. In South Carolina, as Nancy Cave pointed out, we had
one situation where the coal ash is 18 feet into the
groundwater.
Senator Markey. For each witness, do any of you disagree
that coal ash should be prohibited from being dumped into
drinking water sources? Do any of you disagree with that? Let
the record show that no one does disagree.
Ms. Dunn, your testimony states that the EPA rule will
result in a duplicative program because States already have
effective programs for managing coal ash residuals. However,
EPA found in its 2015 regulatory impact analysis for this rule
that 18 of the top 34 coal ash-generating States have none of
the basic pollution control requirements for coal ash ponds
contained in EPA's rule. Do you disagree with this EPA finding?
Ms. Dunn. I would assume that EPA's finding is accurate. We
support the setting where States would fold the Federal
standards into a State program. We are supporting the States
upgrading their existing programs. Some State programs exceed
the technical requirements.
Senator Markey. Is it true that the State of Tennessee,
home of the legendary breach of coal ash disposal pond that
released 1.1 billion gallons of toxic coal ash sludge that
literally buried more than 300 acres and filled nearby
waterways, still does not regulate coal ash ponds?
Ms. Dunn. I am not able to talk exactly to the State of
Tennessee's regulations but I would be happy to get back to you
on those.
Senator Markey. Mr. Holleman, do they regulate, Tennessee?
Mr. Holleman. Tennessee did not put in place any new rules
for its coal ash lagoons. In fact, we just have had a
proceeding ourselves in Tennessee where, after we sent a 60-day
notice on the Clean Water Act, the Tennessee agency had to
admit that TVA is now and has been for years violating other
Tennessee laws at Gallatin, and the State agency has not done
anything to stop it.
Senator Markey. In the town of Pines of northern Indiana,
hundreds of thousands of tons of coal ash was used to landscape
peoples' backyards. EPA found that the coal ash leached arsenic
and other heavy metals into drinking water wells.
Mr. Holleman, if we eliminated EPA's rule, would States be
required to ensure that coal ash could not be used to landscape
peoples' backyards in ways that threaten drinking water?
Mr. Holleman. No, sir, that is another problem. As some of
the witnesses have pointed out, it can be a good thing to use
coal ash in concrete, but you do not want it scattered across
the landscape in unlined fill.
That is what we have seen threatened around the Country and
actually occur in places like the instance you point out. There
is a golf course in Virginia where there was a catastrophe as
well.
Senator Markey. Thank you.
Mr. Chairman, I thank you.
Senator Inhofe. Thank you, Senator Markey. Senator Capito.
Senator Capito. Thank you.
I thank the witnesses for being here. I thank the Chair and
Ranking Member as well.
Mr. Kezar, if you are a rural electric utility, I am
assuming you have sited or at least some of the members of the
national have sited coal ash impoundments or lagoons or
whatever before. That is the usual process for a coal-fired
power plant, correct?
Mr. Kezar. Depending on the type of facility, we do not
have lagoons as they have been discussed today. We do not.
Senator Capito. But your other members would?
Mr. Kezar. Other members would, yes.
Senator Capito. I would imagine that the intent of siting
one of these lagoons is not to leach arsenic into drinking
water. I do not think anybody has that as a goal or certainly
as a result.
Mr. Kezar. No, ma'am.
Senator Capito. Maybe I should direct this question to Ms.
Dunn since she is overseeing and working with all the different
State regulators. What other processes or other regulators
would come into play?
I am from a coal State. We have coal ash lagoons, I am
sure. I think there are 404 permits, the EPA, the DEP State
regulator and the Corps of Engineers who are in on all this. Do
all these other agencies interplay as you are looking to site a
coal ash impoundment? Am I correct in assuming that?
Ms. Dunn. You are correct. There would be a lot of
interaction between different agencies on siting a new
facility. The EPA rule has now requirements for where those
facilities can be sited that will make future sitings much more
selective than they were in the past. That is part of the
evolution of our environmental regulatory system. We will be
making better decisions in the future.
Senator Capito. Based on the rule that was just moved
forward?
Ms. Dunn. Yes.
Senator Capito. Would that change under the House bill, in
your opinion?
Ms. Dunn. In our opinion, the House attempted to take the
good technical work of the EPA rule and allow States to have it
delegated to operate as a State program in lieu of the Federal
program. As EPA's own fact sheet says, no matter what they can
do under the existing law, they do not have the statutory
authority to let the State program operate in lieu of the
Federal program. We are going to have two programs.
You all work on a lot of environmental programs and that is
something we generally try to avoid, overlapping and
duplicative regulation, given the lack of resources at the
Federal level and the State level.
Senator Capito. Mr. Gray, we go to all kinds of
celebrations, so I was celebrating the 50 year birthday of a
dam in West Virginia. I was really amazed to find many, many
years ago it was constructed with coal ash. It is still very
fortified and has the beneficial uses that I think we have all
acknowledged, whether transportation, dams or new construction
and those kinds of things.
If this were to move forward and coal ash could not be
recycled, what would we do with the 50 percent of the coal ash
that is recycled? Is that an accurate figure? What would we do?
This would increase the size of these ponds and maybe could
hazard more danger, I would imagine.
Mr. Gray. Yes, if you are not utilizing it, you are going
to be disposing of it, so it is going to end up in landfills,
is where it will end up. The case that you cite of using ash in
a dam, concrete that goes into dams needs to utilize coal ash
because it gives it unique characteristics. It slows down the
set of hydration as an example.
When you talk about mass pours in dams, a common structure,
you actually need the value of the fly ash specifically for
that purpose, to avoid cracking of the concrete. As we all
know, cracks in dams are not good to have, so it has a unique
performance additive for that reason. We would need that
product going forward or we would have to manufacture some
product to take its place. It is one of those cases where the
byproduct actually serves an excellent performance method.
Senator Capito. Let me ask one final question, a chemistry
sort of question. We have thermal coal, we have metallurgical
coal. Is all fly ash created equal or are there more that maybe
have arsenic properties or other properties? Do you know the
answer to that?
Mr. Gray. Any chemicals or trace elements that happen to be
in the coal usually transition into the ash. In general, that
is a true statement, so slightly different.
Senator Capito. It would be according to where the coal is
coming from, is it lignite or something else that would have
different characteristics?
Mr. Gray. That is correct.
Senator Capito. Some more hazardous than others?
Mr. Gray. Correct.
Senator Capito. Thank you.
Senator Inhofe. Thank you, Senator Capito. Senator Carper?
Senator Carper. Welcome. I am a native of West Virginia who
learned to fish at Bluestone Dam right on the New River.
One of the things I think is attractive about the
regulation the EPA is proposing is they chose not to classify
this substance as a toxic substance. Rather, the idea is to
make it non-hazardous so that we can actually use it for
recycling purposes. I co-chair with Senator Boozman the Senate
Caucus on Recycling, so we are excited about the idea to
continue being able to recycle whether it is dams in West
Virginia or projects in other States.
I have a question for Mr. Holleman and Ms. Cave. Ms. Dunn
mentioned in her testimony that States are ``familiar with the
devastating environmental property and human health impacts
coal impoundment releases can cause. However, in the past
decade we have seen devastating coal ash spills such as the
Duke spill in North Carolina and the TVA spill in Kingston,
Tennessee, partly because the States were not doing their part
to protect public health.''
I speak as a recovering Governor for the State of Delaware,
a former chairman of the National Governors Association and
have huge respect for the States, Governors and others.
How does the EPA regulation ensure States do the minimum to
ensure that coal ash impoundments are safe? If this regulation
were to be voluntary for States or removed altogether, how
would that be different than before the final rule where we saw
some of the devastating spills I alluded to?
Mr. Holleman. First of all, let me say about recycling,
there is not one word in this EPA rule that prevents or hinders
in any way the recycling of ash for concrete.
Senator Carper. That is good.
Mr. Holleman. In all the cases we worked on, we have
reached agreements that encourage, allow and foster that. That
is a total red herring issue.
On the question you asked, I am from South Carolina. I
understand the issue of States' rights. We once had an official
name, States' Rights, in our State, so I understand that
concept.
I also have to live in the real world of communities and
people and neighborhoods of all types. The reality is that the
State agencies are very reluctant and will not enforce the law
we have seen by themselves against the most politically
powerful and wealthy institutions in the State legislative
capitals, which are these utility monopolies.
Senator Carper. Hold it right there. Thank you, sir.
Ms. Cave.
Ms. Cave. I think what is so important about the EPA rule
for an organization like mine is the absolute necessity of
information, because it is the people who must be able to make
the decision as to what they want the utility to do with the
coal ash that is sitting in lagoons.
I think information and protective action are important.
South Carolina is in the process of trying to get rid of the
law that allows the right of personal action. If we do not have
that in EPA law, then we cannot get that coal ash out of the
lagoons.
Senator Carper. Thank you.
I have another question for Mr. Holleman and Ms. Cave, a
brief answer as well. Do you feel that the EPA rule is a
compromise between industry and the environment and health
community?
Mr. Holleman. Yes, it is definitely a compromise. It did
not have everything we wanted in it, but at least it gives
every community, that does not have a nonprofit group fighting
for them, some basic protection for their clean water in their
community.
Senator Carper. Thanks.
Ms. Cave.
Ms. Cave. I would agree. I feel this final rule is
something that must be maintained and not diminished. It is a
tool which we can use to keep our citizens safe. I personally
cannot trust my State to do that for us.
Senator Carper. Thank you.
Ms. Dunn, in your testimony, you expressed concerns about
coal ash being regulated as a non-hazardous substance under
Subpart D of RCRA. Do you have the same concerns for other non-
hazardous substances? Do States have trouble implementing
Subpart D of RCRA as a whole? If not, why is coal ash different
than other non-hazardous substances? Please be brief.
Ms. Dunn. Briefly, States are very capable of regulating
non-hazardous wastes. They do so under many programs, so I do
not think we have a problem managing the coal ash facilities.
We are willing to step up to the plate; we are willing to raise
our game to include these Federal requirements.
I think the most important thing is EPA's own statement
where it says under RCRA as currently drafted, EPA has no
formal role in implementation nor can it enforce the
requirements. When have we heard a Federal agency put out a
final rule that states in black and white that it cannot
enforce or implement?
It is a creature of the statute right now. That is why we
are before you hoping that we can reconcile the fact that EPA
and the States are somewhat left ineffective because we made
the non-hazardous determination which was the right
determination.
Senator Carper. Thank you.
We have another hearing going on in the Homeland Security
Committee and I am bouncing back and forth, so I cannot stay
for long. I very much appreciate your being here. This is an
important issue. We appreciate your input.
Thank you, Mr. Chairman.
Senator Inhofe. Thank you, Senator Carper.
Senator Rounds.
Senator Rounds. Thank you, Mr. Chairman.
Mr. Kezar, in South Dakota, we have one coal-fired plant,
the Big Stone plant, that disposes of coal ash in South Dakota.
For more than three decades, this plant and the State of South
Dakota have responsibly managed the disposal of coal combustion
residues by recycling most of it while disposing of some CCR in
a dry tomb landfill.
However, EPA's rule establishes a minimum, one size fits
all standard for the operation of coal ash disposal and
management facilities. I am concerned this approach does not
take into account the various factors involved in coal ash
disposal at different facilities across the Country.
Do you have examples in your area or are you aware of
examples of any of the standards that do not make sense for
your coop compared to ones that might operate in other parts of
the Country? By that, I mean does it make sense to require a
composite liner for landfills in places like our area where
compacted clay liners are the norm?
Mr. Kezar. Yes, I do have some examples. By the way, I am a
native South Dakotan, so I am familiar with the facility and
disposal.
We have heard some discussion about coal ash being placed
near drinking water aquifers. Just to look at the situation at
San Miguel, we dispose of ash, ash that we cannot recycle. It
is placed in pits within the adjacent surface mine.
The closest drinking water aquifer is over 2,000 feet below
the surface of the land. We live in an area where the
hydrology, the shallow aquifers are very saline and are not
usable. That is a very different situation. The likelihood that
ash is ever going to get into a drinking water aquifer is
almost non-existent.
In addition, the native soil is high clay content. It has
been tested by the State environmental quality agency and that
native soil is actually less permeable than the requirements
for a compacted clay liner.
As you mentioned, requiring a composite liner in that type
of setting just would not make any sense. That is why we
support the EPA setting minimum guidelines that the State then
would implement in a permitting program.
The State has the technical expertise and the site specific
knowledge to work on a permit that takes into account those
different circumstances for the different areas where the
permits are being granted.
Senator Rounds. I will followup with this. In the preamble
to the final rule, the EPA says its approval of revised State
solid waste management programs will signal the State program
meet minimum Federal standards.
In South Dakota, the State has had a strong solid waste
program in place for decades. Accordingly, the Big Stone coal
plant complies with all of the State regulations for CCR
disposal. I would express concern about the impact citizen
suits could have on the States' ability to regulate coal ash
disposal.
Under the EPA rule, if a facility is operating in
accordance with the State program, will that protect it from
citizen suits?
Mr. Kezar. No, because under the rule, the State program
will not be able to be implemented in lieu of Federal
guidelines. The potential Ms. Dunn mentioned is still there.
Senator Rounds. Thank you.
Mr. Holleman, you testified about the importance of
protecting the ability of citizens to file lawsuits to enforce
EPA's coal ash rule. Does the bill currently under
consideration in the House, H.R. 1734, contain a savings clause
that incorporates the RCRA citizen suit provision without any
change?
Mr. Holleman. That is true. The original proposal did not.
We testified over there and they put that provision in. The way
you gut something like that is you reduce the standards that
are to be enforced so that the right of enforcement does not
have much meaning anymore.
You can still keep the right of enforcement, but if the
standards are not meaningful to be enforced, then you have just
played a legislative shell game. That is what we are concerned
about. We want to have adequate minimum standards that the
citizens can enforce if the bureaucrats do not. We want the
combination of the two.
Senator Rounds. Would you care to comment?
Ms. Dunn. I think we may in some ways be talking past each
other because we also agree there are some very good minimum
standards in the Federal rule. We also agree there needs to be
some flexibility that Congress can provide, and a little
flexibility for the States to adapt and maybe change some of
those liner requirements.
It could be perceived as a rollback but really it should be
perceived as a site specific application of a national standard
to the local conditions. We are not advocating taking away
elements of EPA's rule in any way.
Senator Rounds. Thank you.
Thank you, Mr. Chairman.
Senator Inhofe. Thank you, Senator Rounds. Senator Boozman?
Senator Boozman. Thank you, Mr. Chairman.
I really just have a question for you, Mr. Kezar. Given the
mission and customer base for rural co-ops and public power
producers, tell me about the timeline. Do you think the
timelines in the EPA rule are reasonable as far as being able
to be met?
Mr. Kezar. I think Ms. Dunn testified earlier that it is
going to be very, very difficult. We will have to make our best
guess, step out. We are already expending funds now in
anticipation of what is going to be coming, but the timelines
are very, very challenging.
Senator Boozman. Can you comment also, Ms. Dunn? Because I
think this is very important. It does not matter which side of
the issue you are on, this is a practical thing that has great
impact to reliable electricity.
Ms. Dunn. Absolutely, Senator. What States have to do right
now is operate on two pathways, not knowing what will happen
with the House and Senate. They are moving forward now to
assess and opening up their State solid waste management plans,
going through that process and investing the resources in that.
That whole process could play out over some time without
legislative intervention. That same time and State energy could
be spent working to implement an actual delegable State program
with EPA. That would be a better use of the time.
Senator Boozman. Thank you, Mr. Chairman.
Senator Inhofe. Thank you, Senator Boozman.
Without any further members here, we are adjourning this
meeting. I appreciate very much all five of you. It has been
very enlightening and educational for me and I certainly think
for the rest of us also. Thank you so much.
[Whereupon, at 10:53 a.m., the committee was adjourned.]
[Additional material submitted for the record follows.]
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