Hearing of the Subcommittee on Energy and Mineral Resources of the House Natural Resources Committee - H.R. 493, The Coal Ash Reclamation, Environment and Safety Act of 2009

HEARING OF THE SUBCOMMITTEE ON ENERGY AND MINERAL RESOURCES OF THE HOUSE NATURAL RESOURCES COMMITTEE

SUBJECT: H.R. 493, THE COAL ASH RECLAMATION, ENVIRONMENT AND SAFETY ACT OF 2009

CHAIRED BY: REP. JIM COSTA (D-CA)

WITNESSES: JOHN CRAYNON, CHIEF, DIVISION OF REGULATORY SUPPORT, OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT, DEPARTMENT OF INTERIOR; TOM FITZGERALD, DIRECTOR, KENTUCKY RESOURCES COUNCIL; DAVITT MCATEER, VICE PRESIDENT, SPONSORED PROGRAMS AND CEO, CENTER FOR EDUCATIONAL TECHNOLOGIES & NATIONAL TECHNOLOGY TRANSFER CENTER, WHEELING JESUIT UNIVERSITY; NICK AKINS, EXECUTIVE VICE PRESIDENT FOR GENERATION, AMERICAN ELECTRIC POWER SERVICE CORPORATION

Copyright ©2009 by Federal News Service, Inc., Ste. 500, 1000 Vermont Ave, Washington, DC 20005 USA. Federal News Service is a private firm not affiliated with the federal government. No portion of this transcript may be copied, sold or retransmitted without the written authority of Federal News Service, Inc. Copyright is not claimed as to any part of the original work prepared by a United States government officer or employee as a part of that person's official duties. For information on subscribing to the FNS Internet Service at www.fednews.com.

REP. COSTA: (Strikes gavel.) The legislative hearing on the Subcommittee on Energy and Minerals and Resources will now come to order.

This morning the subcommittee will hear testimony on H.R. 493 that has been introduced by the chairman of the Natural Resources Committee, my good friend Chairman Rahall, from West Virginia.

This bill would direct the secretary of Interior, if it were to become law, to promulgate regulations concerning the storage and disposal of matter that is commonly referred to as "other wastes" in the Surface Mining Control and Reclamation Act of 1977 and for other purposes.

So we are going to hear testimony this morning with four distinguished witnesses who have expertise in this area on not only the construct of legislation, but also any advice they have in terms of how we can incorporate best management practices, given the science, to ensure that we protect health and safety, and we do it in a cost-effective way.

I have a few ministerial items that I must dispense with at this time. Under Committee Rule 4(g), the chairman and ranking member -- that's my colleague and I here, Mr. Lamborn -- can make opening statements. And if other members have statements, they can be included in the hearing record under unanimous consent.

We will defer a bit from that this morning to allow the chairman of the full committee, Chairman Rahall, whose distinguished service for many years -- not that he's old, but he was very young when he came here -- (laughter) -- I call that arctic blond -- and Doc Hastings, who is also a good friend and is from the state of Washington, to make opening comments, along with my ranking subcommittee chair -- I mean ranking member and myself.

And then for the rest of the members, if you do have statements, we will submit them for the record, because we want to get to the heart of the matter, which is the four witnesses that we have here today, and allow them to present their testimony, so we can then proceed with the questions and comments.

So, in addition, for members of the subcommittee and for those new members, under Rule 4(h), any materials that are submitted for inclusion in the hearing record must be submitted no later than 10 days within the hearing day period. And if you have any additional questions which you would like to submit to the witnesses, we have that 10-day period.

We would only ask, to complement both minority and majority staff, that you do it sooner rather than later. It's helpful to the witnesses, and it's helpful for us to get the answers back and that they can be included in the record.

So with that said, I will defer to the chairman of the Natural Resources Committee, Chairman Rahall, to give his opening statement. This is his legislation. This is something that he has a long track record and experience with, not just as it relates to the coal mining industry in West Virginia, but resources throughout the nation. And we look forward to hearing from you.

Chairman Rahall?

REP. NICK RAHALL (D-WV): Thank you, Mr. Chairman. I appreciate not only your having this hearing today, but the fact that you're making this the first issue to be considered by your subcommittee in this Congress. I want to congratulate the gentleman from Colorado, Mr. Lamborn, on becoming your ranking member on the subcommittee.

When I introduced H.R. 493, I noted that years ago, a West Virginia coal miner wrote a letter to me noting that every single federal law regulating coal was penned in blood.

He was referring to the fact that it took a 1968 explosion claiming 78 souls at a mine in Farmington, West Virginia, to give rise to the Federal Coal Mine Health and Safety Act of 1969; and that it took the failure of a coal slurry impoundment at Buffalo Creek, in Logan County, West Virginia, that killed 125 people for the Congress to finally pass the Surface Mining Control and Reclamation Act of 1977.

When that facility owned by the Tennessee Valley Authority gave way, unleashing an avalanche of coal ash sludge that covered more than 300 acres, I noted that this time heaven intervened, and thankfully no lives were lost.

We need to learn a lesson from what happened at Kingston, Tennessee. This issue cannot be ignored. I believe we have a ticking time bomb on our hands.

The electric utility industry generates 131 million tons of coal ash each year, yet the disposal of this massive amount of material is the subject of a patchwork of state regulation -- some very good, some not so good, some bordering on the nonexistent.

The bill that I have introduced seeks to deal with just one aspect of the issue of regulating the management of coal combustion waste. It is a rifle shot aimed at ensuring the structural stability of coal ash impoundments. There remains, of course, the much broader issue of regulating the disposal of these wastes in landfills and in coal mines.

Last week, I sent a letter to the EPA administrator, Lisa Jackson, urging her to move forward with a comprehensive coal combustion waste regulatory regime under the Resource Conservation and Recovery Act.

Congress directed EPA to do this back in 1980. Twenty-nine years later -- 29 years later -- there are still no regulations on the books.

So I look forward to hearing from our witnesses today. Davitt McAteer, from my home state of West Virginia, is an expert on so many coal-related issues. He has been our guru when it comes to mine health and safety in our state of West Virginia. He has a national record in that regard. And he is a man most qualified to speak on this and so many coal-related issues.

Tom FitzGerald, we recognize and welcome you as well.

Certainly happy to have both of these gentlemen, who have worked with my staff and myself for a number of years, and I appreciate their taking time to come to Washington for this hearing, as well as all of the panelists. We welcome you.

And thank you, Mr. Chairman, again, for recognizing me.

REP. COSTA: Thank you, Chairman Rahall, for setting the table in I think a very illustrative way that talks about the importance of this legislation that we are going to be hearing about today.

I'd like to just defer at this time to my colleague, a ranking member of the subcommittee, Mr. Lamborn from Colorado.

REP. DOUG LAMBORN (R-CO): Thank you, Mr. Chairman.

And I want to thank all of the members of the public who are here and the witnesses.

Also, on this subcommittee, I want to welcome two of the new members who are on the subcommittee, Mr. Chaffetz from Utah and Mr. Fleming from Louisiana, and also, the ex-officio ranking member of the full committee, Representative Hastings from Washington.

And thank you, Mr. Chairman, also for holding this important legislative hearing on H.R. 463 (sic), the Coal Ash Reclamation, Environment and Safety Act of 2009.

This is my first hearing as a ranking member of this subcommittee, and as such I look forward to working with you to address the pressing energy and mineral needs facing our nation. This committee has jurisdiction over the many rich resources of our federal lands.

Today's hearing focuses on coal, which could be America's largest energy source. But we will also focus later on oil, natural -- and natural gas, both of which America has in abundance.

In addition, we should examine America's carbon-free energy sources. Ensuring that the lands under our jurisdiction can be used to promote wind, solar, tidal, geothermal and hydropower, and that we are working to promote a sound supply of uranium for America's nuclear future are also priorities.

I look forward to working with you over the next two years, Mr. Chairman, to address what I believe is our shared goal: energy independence for America.

That said, today's hearing is focused on developments from a disaster last December, where the Tennessee Valley Authority -- or TVA's -- Kingston, Tennessee, coal-fired power plant suffered a dam failure that released 5.4 million cubic yards of coal ash, covering 300 acres of land and spilling in to the Emory River adjacent to the plant.

This accident has brought renewed attention to the reuse, storage and disposal of coal ash, a by-product of burning coal for electrical power generation.

A second spill of gypsum slurry at another TVA coal-fired power plant just three weeks later raised additional questions about the safety and accountability of maintenance at power plants.

While most of the land area covered by the Kingston failure is owned by TVA, the ash impacted 40 private homes, destroying three.

Fortunately, water analysis of private wells, river water and treated water conducted by the Tennessee Department of Environment and Conservation did not show any values above drinking water standards.

TVA is a government entity created in 1933 as part of President Roosevelt's New Deal effort to bring the country out of the Great Depression. Historically, jurisdiction of TVA does not come under this committee, but rather is under the jurisdiction of the Transportation and Infrastructure Committee.

The fly ash impoundments in landfills at coal-fired power plants are regulated by state agencies that have delegated authority from EPA for Clean Water Act permits and state agencies with responsibility for dams and waste disposal. Currently, there is not a national standard for such dam safety.

Regulation of impoundments at coal mines comes under the Surface Mine Control and Reclamation Act of 1997, which is overseen by the Office of Surface Mining in the Department of Interior.

Coal is mined in 27 states, 24 of which have delegated authority under SMCRA. However, 37 states rely on power generated from coal- fired power plants. Remember, 50 percent of the nation's electricity is generated from coal-fired power plants. In my own state of Colorado, 70 percent of our power is generated from coal.

But I digress. My main point here is that under this legislation the Office of Surface Mining will have to expand into 10 additional states. And it seems that such an expansion will further complicate an already complicated jurisdictional and regulatory picture. Moreover, there does not seem to be a funding mechanism in the legislation to accomplish such an expansion and enforce the requirements of the proposed legislation.

I would suggest a more surgical approach -- to work with the states that have coal-fired power plants and the federal agencies with regulatory authority over these facilities, to identify any gaps in the regulatory framework, to develop a national standard or best practices for these facilities.

I look forward to hearing from our witnesses today, and I also look forward to working with the chairman to address these and other problems.

Thank you, and I yield back.

REP. COSTA: Thank you very much, gentleman from Colorado, for your constructive comments on -- in general, and specifically your observations as it relates to the legislation before us.

I would like to open on my comments at this point in time. First, to tell members of the subcommittee that we welcome all of you. And for those of you who have -- I have had the opportunity and the pleasure to work with in the past, I want to continue the comity and the bipartisan working relationships that I've tried to maintain since I've come to Congress.

For those that -- you who are new members, I welcome you. This is a -- I think one of the very interesting and important subcommittees, not only for the full Natural Resources Committee, but one of the important subcommittees in Congress, because we are the stewards of resources on federal lands, resources that provide so much important energy and materials for our nation, but yet federal lands that -- which we also have a dual responsibility to protect and maintain for future generations. These lands, after all, belong to all Americans.

And so the difficult part that this subcommittee has -- along with the full committee, of course -- is to provide that balancing act, to be good stewards of lands that are under the custody of this policy committee, but belong to all Americans, and yet at the same time to provide a balance to utilize those in what are good, mindful practices that protect it for future generations to come.

The 111th Congress and the first meeting of this subcommittee will focus, again, on disposal of coal ash because of the importance that Chairman Rahall indicated in his opening statement. But we will have an active schedule that will -- I will share with the subcommittee members as we continue to meet not only this year, but next year, throughout the 111th Congress. And I look forward to doing good work with each and every one of you.

The witnesses that we have will testify on a host of issues -- the growing quantity of coal ash that we produce when we burn coal at our power plants. There are about 131 million tons a year. That is equivalent to the United States' entire municipal solid waste production. So it's a large waste stream that we're dealing with here.

There are dangerous elements within coal ash, as was noted before. It contains arsenic, selenium, mercury and other heavy metals that can cause cancer and impact the nervous systems for all of us.

The risk, therefore, presented by the lack of federal regulation and inconsistent state regulation on coal ash, I think is significant, and trying to develop a uniform standard is what the legislation that Chairman Rahall has introduced, frankly, is all about.

Almost all seven expert witnesses last year, when we last held a hearing on this matter, as a result of Congressman Sarbanes' interest because of issues that he has dealt with firsthand in his own congressional district, provided information as it relates to state agencies. They'll -- that hearing called for a minimum federal standard for coal ash disposal to protect citizens and our natural resources. We had a witness that testified that called for -- the current approach to coal ash disposal as foolish and dangerous. This was last year, before the incident that took place in December.

A professor from the University of Colorado School of Law predicted that -- he believed that if we did nothing that we could expect to see problems in the future and, of course, sadly that has proved prophetic.

In June 2008, the coal ash hearing that we held was just the beginning of the subcommittee's work, which is why we're holding this hearing today.

The disaster that took place in the Tennessee Valley Authority Kingston coal-fired power plant in December, plus coal ash from -- put it front and center as it relates to this subcommittee's efforts. That's why we're holding this as our first hearing.

The Kingston spill focuses specifically on surface impoundments and ash ponds and the roughly one quarter of the coal ash that is dumped in them.

And Kingston, Tennessee, did not have a unique coal ash ponds. There are plenty of bigger coal ash impoundments nationwide. We have substantiated that on material that has been provided to you in a report that was provided by the Environmental Integrity Project. For example, a plant in Orlando, disposal of over 1 million pounds of lead to surface impoundments between 2000 and 2006, three times as much as contained in the Kingston during that same time period.

The legislation that we're going to be discussing here today and that we want our witnesses to testify on -- H.R. 493, the Coal Ash Reclamation, Enforcement and Safety Act of 2009 -- as we noted, this bill -- as Chairman Rahall noted and I concur -- is all about common sense. It will make coal ash ponds and utilities at TVAs surfer -- safer -- excuse me. New impoundments would meet standards and stability for careful design. And they would provide uniformity throughout the country if this legislation were to become law.

It would also require a national assessment of roughly 300 existing impoundments, and creates a federal authority to require changes, if needed, to make those 300 impoundments safer. And it will ensure regular oversight and inspections on all that would qualify under this legislation, were it to become law.

So we look forward to hearing from the four witnesses today on this bill and get their perspectives on how to best -- how to best -- prevent coal and ash pond spills and leaks in the future.

With that, let's move to the witnesses. Let me first note that members of the subcommittee and those in the audience, they have -- when received the witness list -- noticed that we had five individuals testifying here this morning.

Sadly, Ms. Sandy Gruzesky, who is the director in the Division of Water for the Department of Environmental Protection for the state of Kentucky, has, I've been informed, been in an auto accident and, sadly, she has had serious injuries. Her colleague, who will testify today, Mr. FitzGerald, has indicated that she is in surgery this morning. We want to convey our thoughts and prayers to Ms. Gruzesky and her family, and we wish her a speedy recovery.

And so, members of the subcommittee, we will have four witnesses that we will begin here today. We have Mr. John Craynon, chief, Division of Regulatory Support, for the Office of Surface Mining, Reclamation and Enforcement with the Department of Interior.

We have Mr. Tom FitzGerald, director for the Kentucky Resources Council, who informed us of Ms. Gruzesky's circumstance. And we thank you for coming.

We have Mr. Davitt McAteer, who Chairman Rahall spoke of earlier, who is the vice president for sponsored programs and the CEO for the Center of Educational Technologies and National Technological Transfer Center at a fine university -- Wheeling Jesuit University, in West Virginia.

And Nick Akins, the executive vice president for generation of the American Electric Power Service Corporation.

Gentlemen, I don't know how many of you have testified before, but we have some simple rules here. If you notice, on my left is a -- is a device that keeps time. And it has a green light, and it has a yellow light and it has a red light. You have five minutes. At the end of four minutes, that green light will change to yellow, and that means you have a minute left. And then when it turns red, your chair will eject. No, that doesn't happen. (Laughter.)

But we do want you to be timely in that and, when you see it red, to begin to wind up your comments. And we try to follow the time rule, so that everybody gets an opportunity to testify and everybody gets an opportunity to get to the part -- what we like best, which is the question-and-answer period.

So having said that, Mr. John Craynon, chief, Division of Regulatory Support, with the Office of Surface Mining, Reclamation and Enforcement, for the Department of Interior, you're on. You're first. And we look forward to your testimony.

MR. CRAYNON: Thank you, Mr. Chairman. As you can tell, I am a first-timer. I didn't know to turn the microphone on.

Mr. Chairman and members of the subcommittee, thank you for the opportunity to participate in this hearing to discuss the important issues relating to coal ash impoundments and storage areas that are addressed by H.R. 493, the Coal Ash Reclamation, Environment and Safety Act of 2009.

My name is John Craynon, and I am chief of the Division of Regulatory Support at the headquarters office of the Office of Surface Mining, Reclamation and Enforcement. I've been at OSM for over 12 years, and have spent the past 25 years at the Department of the Interior. I'm also a professional engineer, licensed in the commonwealth of Virginia.

The Department of the Interior and the administration are currently weighing how best to address this legislation. The administration has not yet come to a conclusion, as we consider different regulatory authorities and approaches for this issue, but will do so in the future. The remainder of my comments today focus on the technical aspects of the bill, and are not intended to be the official position of the department or of the administration on this legislation.

Impoundment safety was one of the motivating factors for the passage of the Surface Mining Control and Reclamation Act of 1977 and the creation of the bureau for which I work. The failure of the coal waste impoundment at Buffalo Creek, West Virginia, which Chairman Rahall has noted earlier, resulted in a catastrophic loss of life and enormous property damage. And that provided the impetus for legislative action.

Impoundment safety is an integral part of the surface mining regulatory program, as it has been from the very beginning. The recent failures of coal ash impoundments at power plants operated by the Tennessee Valley Authority have created a similar impetus for action, this time regarding the construction and safety of impoundments at non-mining sites.

H.R. 493 assigns three major responsibilities to the secretary of the Interior. First, it requires him to establish a regulatory framework for coal ash impoundments using the provisions of SMCRA related to impoundments and waste piles as a foundation. Second, the bill requires him to conduct an inventory of existing impoundments, including an assessment of the risk they pose to human health and the environment. Third, the bill provides the secretary with the authority to issue orders based on that risk assessment that would require existing coal ash impoundments to comply with the new regulatory program. Implementation of these provisions would require a significant commitment of department resources.

This new program would apply not just to those areas with coal mining activity, but also to a new universe of materials and sites beyond active and abandoned coal mining sites. As you know, this would be a very significant expansion of OSM's authority and scope of responsibilities. Additionally, we believe the ambitious six-month time frame allowed for publication of a regulatory program would be very difficult to meet.

Historically, the development and publication of a proposed rule has required in excess of one year to allow for public outreach, preparation of supporting documentation, and consultation that may be required with agencies such as the U.S. Army Corps of Engineers, the U.S. Environmental Protection Agency and other federal and state and tribal agencies that may also have statutory and regulatory responsibilities related to these impoundments.

We believe it is important and appropriate to define more clearly the scope of this legislation. Specifically, a more precise definition of covered waste should be considered. Neither SMCRA nor its implementing regulations define the term "other wastes" as used in Section 515(b)(11) of SMCRA.

If the intent of H.R. 493 is to ensure regulation of all surface impoundment facilities constructed of or containing the products of coal combustion, the term "slag" should be eliminated, because that encompasses a broad range of industrial wastes, not just coal combustion byproducts.

Additionally, defining covered waste in a manner consistent with the definition of coal combustion products in ASTM standard E2201-02a would ensure the appropriate degree of both inclusivity and exclusivity.

We also believe that the term "impoundment" and its definition as used in this bill may be unnecessarily confusing. In common usage, the term "impoundment" refers only to structures holding liquid or semi-liquid materials. The current definition of covered waste in the bill also includes materials stored or disposed of in solid form. The bill defines "impoundment" as any dam or embankment used to retain the covered wastes. When these two definitions are read together, the bill could be construed as applying to piles constructed of solid coal combustion byproducts. The meaning and applicability of the bill would be clearer if it were revised to apply to any pile or impoundment constructed for the purpose of disposal or long-term storage of coal combustion byproducts.

We have other technical comments that we would be pleased to share with the subcommittee on request.

Mr. Chairman, we look forward to working with the subcommittee and staff and providing our technical expertise on impoundment safety and security. I'll be happy to address any questions the subcommittee might have.

REP. COSTA: Thank you very much, Mr. Craynon, for your timely remarks.

And our next witness is Mr. Tom FitzGerald. He's the director of the Kentucky Resources Council.

And again, the device is right there in front of you. And once again, please convey to Ms. Gruzesky's family that we wish her the very best and a speedy recovery.

MR. FITZGERALD: Mr. Chairman, Congressman Rahall and members of the subcommittee, my name is Tom FitzGerald. I'm director of the Kentucky Resources Council, which is a non-profit environmental advocacy organization providing legal and technical assistance, without charge, to low-income individuals, to community groups and to local governments on a range of environmental issues. It has been some 20 years since I have been in front of a congressional subcommittee, and I appreciate the invitation to be back.

I always preface my testimony with full disclosure, so that you may appropriately discount everything I have to say afterwards. My perspective has been forged with 37 years of advocacy on coal-related issues, four of them as an environmental specialist for AppalRed, which is the legal services program in Eastern Kentucky, and the past 25 years as the director of the Kentucky Resources Council.

I represent folks who live downhill, downwind and downstream of coal mining operations, of utility plants and of coal ash impoundments. I've buried one client who was crushed to death when a poorly-engineered and even more poorly-constructed 192-foot-high coal waste impoundment collapsed and spilled 25 million gallons of slurry into the valley in which he lived.

I'm here before you both to express my appreciation to Congressman Rahall for his proposed legislation to address the under- management of coal combustion waste in impoundments by utilities, and also to underscore what the congressman has stated over the years, and most recently in his February 3rd letter, and what the environmental community and my clients believe to be the case. It is past time for the U.S. EPA to step up to the plate and propose and adopt a comprehensive regulatory framework for the management of coal combustion waste, establishing national force for the characterization, management, disposal and beneficial reuse of the various waste streams associated with coal combustion.

The H.R. 493 is an important vehicle for opening this dialogue by assuring that, as an interim matter, no new embankment-type structures for the storage or disposal of coal-combustion waste will undermanage those wastes in the way that TVA did at its Kingston plant.

By requiring that all new dam or embankment structures for coal ash, slag and flue-gas desulfurization materials be designed to meet the standards currently applied to coal-processing waste structures and by defining the term "impoundment" intentionally broadly enough to encompass all embankment-type structures that retain these wastes, whether in a solid, semi-solid or liquid form, this bill will help avoid future catastrophes such as the failure of the TVA structure.

That the state of Tennessee had classified that structure as a landfill rather than an impoundment underscores the need to define both covered wastes and impoundments as broadly as this bill does.

H.R. 493 would provide a backstop that would assure that new embankment structures retaining coal-combustion wastes meet engineering, design, location and construction standards and that existing impoundments be either upgraded or be closed.

I know the sponsor shares my belief that the regulation of these wastes under SMCRA is not the ideal strategy, that it -- and that it is not a surrogate for a comprehensive regulatory framework managing all aspects of this growing and increasingly problematic waste stream. I appreciate the February 3rd letter underscoring for the new EPA administrator that it is long past due for EPA to step up and do that.

The savings clause in this bill at Section 2(g)(1) expressly recognizes and protects the ability of other agencies acting under other federal laws to prohibit the construction and operation of these impoundments.

And certainly KRC believes that the use of water as a mechanism for conveying the various wastes from the utility plants should be eliminated and should be replaced by pneumatic and other systems for dry collection, management and storage of -- and disposal of these wastes.

Wet coal-ash management is a matter of utility convenience, not necessity. And as the TVA release and scores of less catastrophic but equally problematic releases have shown, the use of water to transport the ash as slurry from the combustion process comes at a hidden and significant cost that should be internalized and paid by rate payers, rather than paid by those who are downstream.

Section 2(g)(2) also protects the existing state programs that apply more stringent standards. I'm very confident, and if Sandy Gruzesky were here she would tell you, that Kentucky would not have misclassified this impoundment as a landfill.

As Congressman Rahall has noted on several occasions over the years, the hodgepodge, piecemeal regulation of coal-combustion waste within and among the states, in this area as well as in disposal and in the black hole that is called "beneficial reuse," needs a national framework of minimum acceptable standards to protect the public and the environment.

I have 14 seconds left. Let me just close by suggesting that adoption of a program of uniform, comprehensive and appropriate minimum standards is the best way to assure legitimate beneficial reuses of coal-combustion wastes are expanded and to eliminate sham reuses.

I have attached two documents for reference, Mr. Chairman. One is my testimony before the National Academy of Sciences on the co- disposal of coal ash at mines. I know you had a separate hearing on that. It is a particularly problematic practice. And the second is my suggested technical amendments to H.R. 493.

I thank you very much for your time, and I cannot believe that I actually got in before my time expired. (Laughs.)

REP. COSTA: You did a very good job. And without objection, we'll submit both documents for the record. And we'll look forward to the questions-and-answer period.

Next is a gentleman who I had the pleasure to meet before the hearing, Mr. Davitt McAteer, whose knowledge and expertise and respect is well known not just in West Virginia but throughout his area of expertise. And if the chairman believes that he comes highly recommended, I believe he comes highly recommended.

So, Mr. Davitt McAteer, vice president for sponsored programs at Wheeling Jesuit University, you're on.

MR. MCATEER: Good morning, Chairman Rahall, Chairman Costa, Ranking Member Lamborn and distinguished members of the Subcommittee on Energy and Mineral Resources of the Natural Resources Committee.

As mentioned, I am Davitt McAteer, vice president of Wheeling Jesuit University. I'm here to offer four points.

Coal-ash impoundments are not unlike coal-waste impoundments in that they are products produced as a result of processing coal. In 1972, as was mentioned, the Buffalo Creek failed -- impoundment failed, and 127 persons were killed and thousands of homes destroyed. As a result, federal and West Virginia state -- the -- governments adopted regulations controlling the design, building and maintenance of impoundments of coal.

On October 11th, 2000, a coal-impoundment dam failed through the bottom in Martin County, Kentucky, releasing 300 million gallons of sludge. While no one was killed, the ecosystem was destroyed for nearly a hundred miles.

I was the assistant secretary for the Mine Safety and Health Administration, one of the agencies responsible for the safety and security of these impoundments, and sadly must admit that we had not been sufficiently proactive in learning from the warning signs of impounding failures that occurred at Martin County, not unlike the situation we have today at the Kingston, Tennessee, facility.

Following that failure, Senator Byrd and Congressman Hal Rogers from Kentucky asked the National Academies of Science to study the issue of coal impoundments, and they produced a report, Coal Waste Impoundment Risks and Responses as well as Alternatives, in 2002.

With the -- in 2003, with the help of Senator Byrd, we established a Coal Impoundment Program at Wheeling Jesuit University with the purpose of addressing surrounding -- issues surrounding coal impoundments and also addressing lessons learned in the disaster, including one fundamental conclusion: After Martin County, what we learned was that the people who needed to know the most about these impoundments, those living downstream, knew the least about them. The lessons learned from those experiences might prove useful to this committee as it addresses the questions before it.

I have a series of slides here to show what we have done at the Coal Impoundment Project. We've mapped the impoundment locations across the country. There are roughly 500 such impoundments. And in West Virginia, which requires that emergency evacuation plans are required for impoundments that can impact families and property, at high-hazard dams, each impoundment is identified and --

REP. COSTA: Excuse me -- excuse me, Mr. McAteer. I just want to make sure members have the PowerPoint here, because that's a little difficult to see. So I believe it's in your handouts, and if not, we'll make sure that we get it to you.

You're on the second page now?

MR. MCATEER: I'm on the second page now, mm-hmm.

REP. COSTA: All right. Very good. Thank you. Please proceed.

That's on my time. Go ahead.

MR. MCATEER: (Chuckles.) Thank you. This mapping consists of identifying the impoundments by using GPS satellite imagery so that you can, in fact, identify the impoundment that's above your house and identify the -- your house and where you're located; also understand what the emergency evacuation plan -- should a problem occur.

Our thinking is to put together a package for individuals who have a Sunday night heavy rainstorm, they're concerned about it, and who should they contact?

(To person in charge of PowerPoint.) Mm-hm?

(Continuing.) Then we conduct field studies as to the public- health impact on the -- public-health impact of the impoundment runoff. We analyze the chemical -- public -- the chemical and mineral constitution of the slurry impoundments, and spills that occur at impoundments.

(To person in charge of PowerPoint.) Mm-hm?

(Continuing.) This is a -- an impoundment that -- slurry spill that -- okay, that's -- and we take samples and analyze that.

One of the shortcomings of the coal-waste impoundment program is it does not have the analysis of the materials going into the impoundments. So we're at a loss to know what's in there, and we have to take samples of when we have that impoundment come out.

Then we do a tabletop exercise, and this is where we have emergency-management officials come together with company officials from the mine, officials from the state and federal agencies, as well as citizens, and they study how the emergency evacuation plans -- and we give them a hypothetical problem.

Then we look at impoundment and instrumentation and monitoring. One of the things we've found is that the use of impoundments is a rather primitive tool; that we simply dump over the hill, in effect. That's not always the case, but generally it is, and we wanted to try to improve the technology, as part of the efforts, to try to look at new technologies that can give us more information and can provide us with better protection.

We do biological studies and the impoundment remediation. There are some efforts to do remediation where we can, in fact, take the impounded material and reduce its presence by using bacteria that eat some of the impoundment material. We're looking at that.

We conduct research on instrumentation and monitoring.

And the driving philosophy of our program is an attempt to educate and improve safety and health for citizens living near the impoundment, to improve proactive spill prevention by impoundment operators monitoring the instance. We put up instances of failures, instances of spills. And that has a positive effect of involving the mine operator, the impoundment operator, in ensuring that his name doesn't go to the top of the list.

And finally, we apply technologies to current impoundment sites and try to improve their design and maintenance.

The current coal combustion residue, fly ash, should be regulated by strong federal and state systems which apply comprehensive location, design, operations, maintenance, enclosure procedures. The disposal of fly ash in dry disposal facilities should be required because of the human and environmental safety advantages.

Research and technologies which encourage beneficial use of CCR also must be increased. And emergency preparedness in the event of failure should be included to protect the citizens who live down the stream.

CCR is a large and growing problem, not only in this country but throughout the world. The creation of coal combustion waste, if left unanswered, will result in disaster, like the Kingston failure.

A comprehensive approach utilizing OSM, EPA and, in my suggestion, MSHA might provide the best model for addressing this problem in a timely way.

Mr. Chairman, thank you very much.

REP. COSTA: Thank you Mr. McAteer. We appreciate that.

As we proceed to our last witness, certainly the last but not least, I would first like to ask unanimous consent that Ms. Gruzesky's written statement be included into the hearing record today. And she is here in spirit.

So hearing no objection, we will have her statement entered into the record.

And we will now hear from Mr. Nick Akins, the executive vice president for generation from the American Electric Power Service Corporation, to comment on this important piece of legislation, H.R. 493.

MR. AKINS: Thank you and good morning, Chairman Rahall and Chairman Costa and the remaining members of the subcommittee. My name is Nick Akins. I am the executive vice president, generation, for American Electric Power.

I would like to thank the subcommittee for the opportunity to present this statement on behalf of AEP, the Edison Electric Institute and the Utility Solid Waste Activities Group on the Coal Ash Reclamation, Environment and Safety Act of 2009, and the issue of safe management of coal ash and impoundments operated by the electric utility industry.

The electric utility industry remains committed to ensuring the integrity and safe operation of the dams and impoundments in which we manage coal combustion by-products, including coal ash.

Utilities have safely managed hundreds of coal ash dams and water impoundments for decades. However, there have been times when we experienced failures. One happened in December at TVA's Kingston plant. More than 40 years earlier in 1967, another serious breach occurred at AEP's Clinch River Plant in Virginia.

When these incidents occur, they should be scrutinized, and they should become a catalyst to bring about improvement in how we manage our facilities and to ensure safe operation going forward. That's what AEP did after the 1967 incident, and that's what we believe the intent of H.R. 493 is today.

The utility industry is taking the ash spill at TVA's Kingston power plant very seriously. In the wake of the spill, utility companies reexamined their dam safety and inspection activities, and many companies, AEP included, are taking immediate steps to ensure that safety inspections are up to date.

A number of state regulatory agencies also conducted additional inspections of utility impoundments to assess their structural soundness.

We welcome that additional level of scrutiny to provide assurance that our facilities are being safely operated. And AEP is taking a leadership role in the industry to develop a set of best practices for the safe management and disposal of coal combustion by-products.

In the wake of the TVA event, we support the intent of H.B. 493 -- improving dam safety. Many states regulates CCB surface impoundments, and many utilities have their own monitoring programs, but having some level of federal oversight or standards to provide consistency across the country has merit.

Developing the appropriate federal programs should began with determining how things operate today, including inventory and existing impoundments and regulations, and also determining what is working and where there are gaps in existing state programs. We understand that U.S. EPA is beginning the inventory process, and we respectfully suggest that the committee coordinate its actions with the efforts and findings of that agency.

It also is imperative that any federal program not produce overlapping or duplicative regulations. For example, although the Office of Surface Mining has the expertise regarding dam safety involving coal or mining waste of coal mines, OSM may not be best suited for addressing management standards for coal ash, which is generated and managed by an entirely different industry.

And while H.R. 493 provides that states have SMCRA authority, can apply for authority to regulate coal ash impoundments under a federal program, many states with developed regulations for coal ash impoundments do not have SMCRA authority.

These state regulations may be worked effectively, but as the bill is currently structured, it appears to provide a potentially duplicative federal program overlaying -- overlay, creating dual and possibly competing regulations.

I would like to thank the subcommittee for the opportunity to present the views of AEP, EEI and USWAG on this issue. We are all committed to operating our facilities safely, and we would welcome the opportunity to work further with the subcommittee on the development of a federal approach to ensure that CCB impoundment safety is managed in an efficient and effective way.

I would be happy to answer any questions you have concerning my testimony. Thank you.

REP. COSTA: You still have another minute of your time. Thank you for your brevity and -- to the point. Thank you.

We look forward to working with you and your comments (sic) -- and the issue of uniformity and as it relates to the different standards in different states.

Now, we're at the round of the questioning. So I have the first opportunity with the five minutes. I'd like to ask a question of all the panelists: Whether or not you would both agree -- or you would agree that bill does in essence two efforts that I think most people would think is a common-sense response to the current circumstances: one seeing that basic federal -- minimum federal standard -- a federal standard be applied for safe coal ash impoundments, and two, assembling a national inventory, which I think is important.

The presentation that Mr. McAteer made, I think, is to be noted, but I don't know that the national inventory, frankly, is complete on how many there are, and also the information on the stability and what is stored in those impoundments, so that we can make an assessment based upon best information and the soundness of that information.

Could each of you briefly indicate whether or not you would agree or disagree on those two important steps, quickly?

MR. CRAYNON: I would agree that those are very important steps to be taken, both on inventory and establishment of general standards.

REP. COSTA: And it really hasn't been done nationwide.

MR. CRAYNON: That's correct.

REP. COSTA: Mr. FitzGerald?

MR. FITZGERALD: I think there have been -- there's no -- (off mike) -- not aware of -- (off mike) -- done with coal -- (off mike) -- I'm not aware that there's been national inventory for coal combustion product impoundments. And it's complicated by the fact that the -- there's no unanimity among the states as to how they classify these. Tennessee did not classify this failed structure as an impoundment.

REP. COSTA: You noted that in your testimony.

MR. FITZGERALD: Yeah. So I think that doing an inventory is extremely important.

I think that a national set of standards is critical for states like Kentucky. We're one of 23 states that have adopted a misguided provision in our state law that says we can be no more stringent than the minimum federal standards. And in the absent of federal standards, the states simply are all over the map in terms of the quality of regulation.

REP. COSTA: No. And that's not limited to, obviously, these impoundments. There are a host of issues with regards to state and federal regulation, and we always should be mindful of that.

Mr. McAteer?

MR. MCATEER: Yes, Mr. Chairman, I believe that the minimum federal standards are absolutely essential.

Second, as to the national inventory, in the materials that we put in the packets, we did a preliminary draft of looking at the NID, the National Inventory of Dams, for a series of states. And we've noted 149 impoundments, just as a preliminary matter.

You will note in that map, however, that Tennessee -- the impoundments in Tennessee are not listed as part of the National Inventory of Dams. So the National Inventory of Dams is inadequate. And I think it absolutely essential that an inventory be done and a ranking of those, as you suggest, a ranking of those as to hazard materials. There's ranking systems for coal waste impoundments, but no ranking systems exist for these impoundments.

REP. COSTA: Yeah, I want to pursue the ranking, because in all these things I think developing some commonsense prioritization is important, because not everything is as significant, as it relates to health and safety, as others, and you never have enough resources to treat them all the same. And so, if you prioritize them based upon the most serious, I think you can get the best bang for your buck in terms of health and safety efforts.

Finally, our last witness?

MR. AKINS: Yes, I would totally agree with your approach in terms of being a commonsense approach. AEP operates in 11 states, and we have impoundments in all of those states. And we're very focused on processes and procedures being common among those states. And we, in fact, have adopted the most stringent state requirements in application to all of our plants across the territory.

So this is definitely a commonsense approach in terms of having some sort of federal guideline and support.

REP. COSTA: Good. It's a good start.

Let me quickly -- because my time has almost run out, could each of your comment, and beginning with you, on the merits of adding federal requirements that coal ash impoundment operators have an emergency action plan, as Mr. McAteer described?

MR. AKINS: Yes, we have the requirement to put in emergency action plans for all of our class one facilities, and we would certainly support that kind of effort.

REP. COSTA: Mr. McAteer, I assume --

MR. MCATEER: The only addition is that we think to involve citizens in a development of those plans is an important aspect of --

REP. COSTA: Of the action plan in the local community?

MR. MCATEER: That's correct.

REP. COSTA: Yes.

Mr. FitzGerald?

MR. FITZGERALD: Mr. Chairman, we are in the process now, and hopefully the Kentucky General Assembly before they adjourn in April -- or end of March -- will have adopted the resolution directing the Division of Water to do emergency action plans for all high-hazard coal waste and coal ash impoundments. So they -- the state and the industry, to their credit, have come around and realized it's necessary.

REP. COSTA: Good, good. My time has expired.

Mr. Craynon, you can just nod your head. (Laughter.)

MR. CRAYNON: I agree. It's standard practice.

REP. COSTA: Very good. Thank you. The gentleman from Colorado, the ranking member, has now five minutes to ask his questions.

REP. LAMBORN: Thank you, Mr. Chairman.

Mr. Craynon, I hope I pronounced that correctly, if this legislation is passed, how many employees do you estimate the Department of Interior and OSM in particular will have to add in order to expand regulation to every coal-fired power plant in the country?

MR. CRAYNON: We have not at this point done a detailed analysis of what resources would be necessary, but we are -- we're more than happy to work with the subcommittee to develop that as time goes on.

REP. LAMBORN: Is there any way you could submit that to us?

MR. CRAYNON: Yes, before this bill becomes -- you know, hits the floor --

REP. COSTA: We'll be happy to -- to (resuming ?) it.

REP. LAMBORN: Okay. Okay, thank you.

Also, for Mr. McAteer and/or Mr. FitzGerald, given the fact that some states have excellent dam safety rules in place, how do you ensure that any federal program for this does not result in unnecessary dual regulation of the same units?

MR. FITZGERALD: Congressman, that's a very good question. And that's something we want to avoid, because none of the agencies that I deal with have extra resources to squander in duplicative regulation.

Section 2(g)(2) of the act -- of the bill protects existing state programs that impose equivalent or more rigorous standards. And so I would assume that as regulations would be developed, there would be an opt-out provision, where the agency would look at the existing state program and would defer to that state program.

It's, you know, like putting in a floor preemption. You prevent kind of a downward spiral, but you don't prevent existing, more rigorous programs. And for states like Kentucky, I wish we had the ability to go above the minimum standards, but, unfortunately, we've turned the federal floor into our ceiling.

MR. MCATEER: Mr. Lamborn, I think the fact that we recommend, for example, that MSHA be involved in the approval of the plan is a conscious effort to try to reduce the cost and to try to use what resources are there.

The Mine Safety and Health Administration has a long history of studying -- for 36 years looking at impoundment plans and also to have -- training individuals. And I think that's one of the areas where we would like to reduce duplication -- we'd like to reduce overlap as well.

REP. LAMBORN: Okay. Thank you.

Mr. Akins, what does the recycling of coal ash by-products do for the reduction of carbon emissions?

MR. AKINS: Typically, if we're able to recycle, it reduces carbon emissions. If we use, you know, like a fly ash in some concrete, for example, to make concrete, versus using fly ash reduces one ton of CO2 for every ton. So it's a significant impact. And it certainly supports the use of products like these in the industry.

REP. LAMBORN: And, as a follow-up, then, as currently written, will this legislation impact the electric utility industry? And if so, how?

MR. AKINS: It'll impact the utility industry, but -- depending on the outcome, obviously. And if a proper inventory is done, if rules are in place so that you don't have duplicative regulations, it certainly can help the industry, certainly for the industries that -- for the utilities that are multi-jurisdictional, like AEP.

But secondly, if it recognizes the state impacts and programs that exist, and they meet those thresholds -- the federal thresholds -- it could have a very positive effect.

REP. LAMBORN: Okay. Thank you.

And for any one of you, if Congress were to extend SMCRA jurisdiction over the impoundments at power plants, as proposed in this bill, do you believe that SMCRA clean-up funds should be available to help deal with the mitigation and clean-up of coal ash?

MR. FITZGERALD: That's a good question. Congressman, from my perspective, representing a number of people who have low-priority AML sites that probably will never be reached because the fund is not inexhaustible, the difference between the pre-law mines, and the pre- law -- if this becomes law -- impoundments is that these existing impoundments are under a regulatory framework. They are typically being undermanaged.

But in the case of the AML program, it was imposing in some states an entirely new regulatory framework where there had been none. And so it was looked at as a way of funding the remediation of sites for which there was no other clean-up obligation.

For these impoundments, many of them, there is either imminent hazard authority or CERCLA authority and obligations. So I don't know that I would support that, except in the case of an orphan impoundment where there was no responsible party.

REP. LAMBORN: Does anyone else care to comment on that?

MR. : I would just second what Mr. FitzGerald says.

REP. LAMBORN: Okay.

And my last question before the time runs out, do you believe that the EPA should categorize coal ash as a hazardous waste under subtitle C of RCRA? Any one of you.

MR. FITZGERALD: I'll take a crack at that as well. Coal combustion waste -- you know, you have a range of different wastes, Congressman. The scrubber sludges typically are not going to be in a range where they are going to leach metals or radionuclides at a concentration that could adversely affect human health.

Fly ash, I think the evidence -- as we've gotten better at controlling air pollution, we are shifting the medium of where those metals and where the other pollutants are ending up. They're sorbed to the particulates that we're capturing.

And I think there really is a need, using appropriate testing, to go back and revisit whether under certain types of disposal and management, these should be regulated as hazardous waste.

MR. AKINS: We do not believe it should be as a hazardous waste, because, obviously, there -- the EPA has looked at this several times and determined it is not a hazardous waste. It doesn't meet that threshold.

And secondly, 30 to 40 percent of our fly ash at AEP is used for products -- concrete products, gypsum. We have a wallboard facility just went in place in the last two years in West Virginia. Those kinds of facilities and reuse of those products is a prudent action to take.

REP. LAMBORN: Okay. Thank you for your testimony and for answering the questions.

REP. COSTA: All right. The gentleman's time has expired. And we're going to have to work though some of these issues, of course.

The chairman and the author of the legislation is now next. And we defer to the gentleman from West Virginia.

REP. RAHALL: Thank you, Mr. Chairman.

Mr. Craynon, you have a very viable distinction and honor for which I want to recognize you today, don't know that you know it or not, but I'm going to congratulate you on being the first person from the Interior Department under the Obama administration to appear before a committee in the House of Representatives. (Laughter.)

MR. CRAYNON: Thank you, Mr. Chairman.

REP. RAHALL: Congratulations. And my first question is to you. As you know, under H.R. 493, we incorporate the primacy provisions of SMCRA. Under the bill, a state with an approved regulatory regime could assume primacy in regulating coal ash dams under the terms of this legislation. And as with SMCRA, your agency would regulate coal ash dams in those non-primacy states.

Coal ash is impounded in states with no coal mining, such as Florida. Now, I know you might love to open up a field office in Florida, but for the purpose of regulating coal ash impoundments, do you have any suggestions on how states like Florida or Wisconsin could gain primacy under the terms of this legislation?

MR. CRAYNON: At this point in time, I'm not in a position to tell you exactly how best we think that could be approached, but I would assume that a similar approach for approving state programs as is used under the SMCRA program could be appropriate.

REP. RAHALL: Okay.

Fitzhugh -- Tom. (Laughter.)

MR. FITZGERALD: That's all right.

REP. RAHALL: You have submitted some suggested amendments to the bill, and I thank you for that.

MR. FITZGERALD: Absolutely.

REP. RAHALL: Do you have any comments on the changes that OSM proposes in their testimony?

MR. FITZGERALD: Well, I understand, looking at the bill cold, that the agency would have responded the way they did. But the reason that the definition of "impoundment" is written as it is, to include solid, semi-solid and liquid storage or disposal in any embankment structure, is to get precisely at the sort of situation that happened at TVA's Kingston plant, where the facility -- basically, you had an impoundment that was a big, old slurry -- you know, ash pond. And then, within it, they had created three separate landfill cells, and permitted them as a landfill, rather than as part of that impoundment, so that there was no -- even if it had been, you know, a high-hazard impoundment, which it was in fact, at law, it was called something completely different. It was inspected only very infrequently, and not subject to the sort of rigorous design standard.

So we wrote this specifically to address that situation, and to assure that this would not happen again under -- under, you know, mislabeling, the way it happened.

REP. RAHALL: Is that what they called sludge cells?

MR. FITZGERALD: They called them dredge cells.

REP. RAHALL: Dredge cells?

MR. FITZGERALD: And basically, what they were doing was scooping the stuff out and, you know, semi-liquid, and putting in it in a cell.

I still -- I have inquired of Megan Lockhart from TDEC whether they had any sort of a leachate collection system, because I can't imagine with that -- you know, this is a hydrophilic material. It's going to soak in the water. There is no daily cover. And if they didn't have an effective way to decant that water, there's no question that it was going to raise the saturated surface to the point where it's just going to blow out through the side of it, which is what happened.

So this -- the reason it was written the way it was, the definition of "impoundment" and the definition of "covered waste," was specifically to address the fact that this material in these sorts of cells, even if it's placed in there in solid form, if it gets -- you know, rainfall is going to saturate it, it's going to stay with it and it could very well convert it into a semi-liquid, with those sorts of consequences.

The definition of "slag," I understand the concern that we don't want to take in non-coal-combustion-waste slag. The reason it was used is because we have a number of facilities that are now looking at coal gasification, which produces a somewhat different product. It doesn't produce a fly ash and a bottom ash. It produces what's either called a slag or a frit, which is a more glassine substance that, depending on the literature you read, has some potential -- or it has less, but still some potential to leach some of the residuals that are left after the gasification process.

REP. RAHALL: Thank you.

Mr. Akins, I appreciate your remarks very much.

MR. AKINS: Thank you.

REP. RAHALL: Very responsible. And I agree with you that we need to expand the beneficial uses of coal ash, rather than impound the material. And that was an issue I raised in my letter to the EPA administrator, that any regulations promulgated under RCRA should promote the recycling of coal ash into beneficial application.

I also noted that in Wisconsin 85 percent of coal ash is recycled. Why do you suppose the percentage is so high in that state?

MR. AKINS: It could be different industries in place that are local. It could be different requirements for concrete. The market, obviously, would be there for that kind of material. Really, it does depend on many factors. I mean, you use everything from plastics to concrete to wallboard facilities, those types of things. So it depends on, you know, what's available.

For example, the wallboard facility, the market can only take so much, so it will depend on the location, and what the market actually can support.

REP. RAHALL: Davitt, my time is running short, but I do have one last opportunity before it expires and --

REP. COSTA: We always have time for the chairman. (Laughter.)

REP. RAHALL: Just want to correct you. The National Research Council's coal waste impoundment study referenced in your testimony, if I recall -- and I know I've been here for a few number of years, and you kind of lose memory after a while. But I think it's Senator Byrd and myself commissioned this, rather than Senator Byrd and Hal Rogers.

MR. MCATEER: Mr. Chairman, I -- after I said that and went on to the testimony, I thought to myself, "What an error to make at this particular time." (Laughter.) But I do apologize. It certainly was you and Senator Byrd.

REP. RAHALL: The record shall be corrected. You noted the use of -- (Laughter.)

REP. COSTA: I have unanimous consent that -- (Laughter.) Glad that you corrected that, Mr. McAteer. You were off to a good start. (Laughter.)

REP. RAHALL: Davitt, you noted the use of mine sites for the disposal of coal combustion residues raises potential concerns and potential benefits. And you referenced the national -- you referenced the study which I just commissioned -- or just announced. Anyway, I'd like to note that in my letter to the EPA administrator, as I mentioned earlier, I did state that this practice should be discouraged until regulations implementing the council's recommendations are put into place.

As you know, we have a situation in West Virginia where the DEP does not know if the injection of coal slurry into mines is safe. So I really don't think we want to ramp up disposing coal ash into mines until adequate regulations are in place. So with respect to the disposal of coal ash in impoundments, would you say that the West Virginia regulatory program is similar to what I am proposing in the pending legislation?

MR. MCATEER: Congressman, I agree with you that the findings of the commission, as well as the study done, or not completed by the West Virginia DEP, raises real questions about the use of fly ash injection into mines. There are very serious concerns. And I think that the commission's recommendations need to be adopted first as a structure, if that is to happen.

The second is that we haven't -- we don't understand the long- term consequences of such injections. We have some injection experience now in West Virginia, because we have done some, but we don't understand the long-term consequences; nor do we understand where the stuff is going to go at the end of the day and whether it is going to contaminate water systems and aquifers, et cetera. We suspect it is. There is some suspicion among some citizens' groups.

And some of our initial studies in the coal impoundment studies have suggested that the leaching of the materials -- in coal waste impoundments, you expect it to go underground, you expect it to be porous and to go into the systems. We found that we can't make a positive conclusion to 100 percent, but we found that where there is some of this porous-nature material going into the systems, then those folks who live downhill are seeing that their water supplies, their wells, are suffering from contamination.

And I think that really needs to be looked at. And I recommend, as you have, that the committee's conclusions be made part of an overall structure before anything is done. And I think that's a very sound approach, and I think that, as I understand it, that's what you're doing.

It's also one of the reasons why I recommend that we use a dry method to dispose of this, because there's -- in the case of coal waste impoundments, there is a reason why companies want to do that -- and that's besides get rid of the stuff. They want a cheap -- inexpensive, I should say -- constant supply of water, so that they can clean the next round of coal that's coming out of the mine. And impoundment does that for them. I see no economic reason, other than the fact that there is a -- that it's cheaper in some instances to wet this coal ash material. I see no reason why. There's no advantage of it, except that your costs, up-front costs, are less for that than dry impoundment.

I think dry impoundment is a positive step, and I think that's a step that EPA's recommended, the National Council -- National Academy of Sciences has recommended and others have recommended. And it's a positive approach.

REP. RAHALL: Great. Yeah. Well, just let me repeat the question. I believe you did answer it, but would you say that the West Virginia regulatory program is similar to what I'm proposing in my legislation?

MR. MCATEER: I think the regulatory program has some similarities, yes, sir. I think it's --

REP. RAHALL: Yes.

MR. MCATEER: Yes is the answer.

REP. RAHALL: Thank you.

MR. MCATEER: You're welcome.

REP. RAHALL: Thank you, Mr. Chairman.

REP. COSTA: I think we have a clarification.

Next, the gentleman from Utah, Mr. Chaffetz, a new member to the subcommittee.

REP. JASON CHAFFETZ (R-UT): Well, thank you, Mr. Chairman.

REP. COSTA: Chaffetz, is that correct?

REP. CHAFFETZ: Yeah, we're getting there. Thanks. I appreciate it.

And Mr. FitzGerald, I hope you can carry back to your state and your colleagues our sincere wishes and prayers for Ms. Gruzesky, if I pronounced her name properly. That's sad to hear, and I know that our hearts and minds are there as well, so.

With that, I would like to first go and have a brief discussion -- my time is short. It's my understanding that the U.S. Environmental Protection Agency has, on innumerous occasions, articulated and looked at these coal combustion byproducts and determined that they are not hazardous waste; that they had four criteria for the corrosivity, reactivity, ignitability and toxicity. Would any of you disagree with those four criteria or the conclusion that they came with?

MR. FITZGERALD: I would disagree that if you look at the statutory definition of what is a hazardous waste -- now, the agency has adopted two different mechanisms, as you stated. One is, they list some categorical types of wastes from different activities. And the second is, they have characteristics, and one of them is the characteristic of EP toxicity. What they use is a short-term dilute- acid test. It's now TCLP toxicity, total constituent leaching procedure.

It is intended to mimic the leachate characteristics of a municipal solid-waste landfill to determine if that waste, if disposed in a solid-waste landfill, would leach metals at a concentration a hundred times safe drinking-water standards.

In those situations where this waste is being managed in other aspects, whether in a monofill or as construction material or as so- called structural fill and some beneficial reuse -- and I use that phrase very loosely, because it is very loose in the way it's applied in Kentucky and probably a number of other states -- there are other tests that should be used to determine --

REP. CHAFFETZ: Okay, but the current -- concurrent configuration -- are those four correct?

MR. FITZGERALD: That is what the agency uses.

REP. CHAFFETZ: That is correct -- and that this does not -- it does not get into those four -- the corrosivity and the four that I named.

MR. FITZGERALD: Right. Right. It is under the current criteria that EPA applies --

REP. CHAFFETZ: My time is short.

MR. FITZGERALD: I'm sorry.

REP. CHAFFETZ: I think I understand you -- the direction you were going.

Mr. Craynon?

MR. CRAYNON: We have worked with our colleagues at the EPA on these materials, because over the last decade or so we've been considering the appropriate regulatory framework for coal-mine placement. And we concur with the findings that the EPA made in the regulatory determination.

REP. CHAFFETZ: Thank you. Mr. Craynon, if I can go to the -- you expressed concern about the six-month time frame, which does seem quite short. What would you recommend in terms of a time frame should this be enacted?

MR. CRAYNON: Well, as I stated in my testimony, our experience is that to propose regulation takes approximately a year. That gives us time to do the public outreach, prepare the supporting documents and actually do the consultation with other involved agencies.

REP. CHAFFETZ: Do -- briefly, do either of the other three of you care to comment on the time-frame aspect?

MR. FITZGERALD: Well, the time frame for taking a regulation from nothing into --

REP. CHAFFETZ: Right.

MR. FITZGERALD: -- promulgation would be longer. In this situation, we have a history going back to 1979 of existing regulations governing impoundments for water and coal slurry. So in terms of identifying which standards would be applicable, obviously it's an aggressive time frame, but when you have --

REP. CHAFFETZ: Do you have a specific recommendation as to the time frame?

MR. FITZGERALD: I think if you look at the interim program, they had, what, a year to do the interim program? You know, given the resources -- they're understaffed now, so there really are resource issues -- a year is probably reasonable.

REP. CHAFFETZ: Okay.

REP. RAHALL (?): Will the gentleman yield very quickly?

REP. CHAFFETZ: Yes, please.

REP. RAHALL (?): The EPA's had 29 years thus far -- (inaudible).

MR. FITZGERALD (?): We certainly have. (Laughter.)

REP. CHAFFETZ: So, 29 years, would that be enough time? (Laughter.)

REP. RAHALL (?): It appears not that -- it appears that it hasn't been enough time.

REP. CHAFFETZ: Last question here is just about the term of the -- slag, you expressed some concern. Can you expand upon that, Mr. Craynon?

MR. CRAYNON: Well, slag is a very loosely used term for any waste product from a fire- or a heat-induced kind of refining technique. Whether a -- slag could be used for the waste material for copper refining or other metals refining, other kinds of industrial processes. So it's just not a precise term that refers only to the waste from coal processing.

REP. CHAFFETZ: Mr. Akins, do you have --

MR. AKINS: Well, I would agree with that, his comments on that.

REP. CHAFFETZ: Okay.

Thank you, Mr. Chairman. Yield back the balance of my one second there.

REP. COSTA: All right. Thank you very much for your timeliness.

Our next member, who is a returning member to the subcommittee, who actually first brought this to our attention prior to the accident that took place in Tennessee, Congressman John Sarbanes, who has had his own experience within his own district on these impoundments and the impacts it's had in his own congressional district.

And we thank you for your efforts last year. And I'm sure that you've got some good questions for the witnesses before us.

The gentleman from Maryland?

REP. SARBANES: Well, thank you, Mr. Chairman. I appreciate -- I appreciate your holding that hearing last year, which really initiated the kind of -- (clears throat) -- excuse me -- oversight and, hopefully, regulation that there needs to be in this area.

My one observation is just some degree of disbelief that this thing has had a focus for as long as it has without resulting in the kind of regulatory regime that would have prevented many of the incidents that have been mentioned today.

As the chairman indicated, in my district last year, it came to light what the effects of the disposal of fly ash have been, and a failure to properly provide for measures against leaching and other things, which then affected the water supply. It led to a significant settlement with Constellation Energy there and has also triggered some further regulatory steps by the state of Maryland.

But I wanted to understand a couple of things. First of all, I want to thank the chairman of the full committee for what he termed as this rightful shot directed at the particular issue that was involved in the Tennessee disaster, which is to look at these impoundments which are largely designed to handle wet coal waste.

I gather that the Surface Mining Reclamation and Control Act (sic) now governs the disposal of coal waste at a mine location -- is that right -- but doesn't extent beyond that, and that's why the legislation that's being proposed is necessary?

MR. CRAYNON (?): That's correct. That is correct, sir.

REP. SARBANES: Okay.

MR. CRAYNON: Congressman, if I might add, the jurisdiction is divided between the Mine, Safety and Health Administration and the Office of Surface Mining SMCRA -- under SMCRA. The general rule of thumb is, MSHA controls it when the waste is on mine property in conjunction with OSM, and OSM has responsibility if it goes off the mine property.

REP. SARBANES: I understand.

The chairman -- Chairman Rahall also pointed out, and has taken pains to point out, that in many respects, because this is a rightful shot, it should be viewed as just the first step of many to establish a larger regulatory framework to deal with this kind of combustion waste, particularly since the projections are that the tonnage is going to increase significantly going forward.

I did, in the last exchange, though, pick up on something that was being implied, I thought. And that is there was some discussion of moving more towards dry impoundment versus, I guess, wet impoundment.

And would dry impoundment include fly ash or not? Is it --

MR. MCATEER: Yes, Congressman, it would include fly ash.

REP. SARBANES: Okay. Well, I guess that's important from my perspective. I mean, as it happens, Mr. Chairman, your legislation may not get directly to any of the sites that we have in Maryland, because we don't have this wet disposal going on there.

But to the extent this discussion is going to lead to the conclusion that dry impoundment is a better, safer way to go, then it raises the bar on making sure that the disposal of fly ash, for example, which -- since fly ash would now be seen as a more preferred option -- that the disposal of fly ash needs to be done in a way that makes -- that makes sense.

And so, by taking the rightful shot and beginning this process, we're also inviting the need to make sure that larger regulatory framework is in place, which I think is what the -- what the chairman was alluding to. And so, we're going to continue to focus on that.

Before my time runs out, I did just want to come back again to the beneficial use question, because the point's been made that in some places, you know, up to 85 percent of the waste generated is being disposed that way. Could we reach a point in time where beneficial use would be available to basically dispose of a hundred percent of the waste that's generated in this or is that not a reasonable goal to have?

MR. FITZGERALD: If I could take a shot at that, I think what you need in order to encourage beneficial reuse more broadly is a set of standards that differentiate between legitimate beneficial reuse and sham beneficial reuses, because there is -- utilities, to a certain extent, are reluctant to let someone else have their ash. They understand CERCLA liability. And so many utilities will not, for example, give coal operations their ash to dispose of at coal mines. Some utilities do.

We have situations in Kentucky where one utility is generating fly ash and bottom ash and sending it right over to a Portland Cement company that is actually using it and incorporating it into product, where it is bound, where there's not environmental consequences associated with whatever metals are there. We also have situations where there are sham beneficial reuses under very weak regulations.

And I think in order to encourage the utilities and encourage the potential users, some standards on the quality of and the composition of those combustion by-products and some standards on how to assure legitimate versus sham uses would be helpful.

REP. SARBANES: Fair enough.

MR. : Certainly, it's important to see that from an expansion of the market perspective, it would be great to find more beneficial reuses for fly ash. And it's not -- I mean certainly we can raise that percentage, but certainly we have to be aware of what those uses are. And I think that's probably one of things we have to understand going forward.

But typically, we would -- we would, obviously, like to see more fly ash used for those kinds of benefits.

MR. AKINS: If I might, Congressman, we produce 131 million tons of this a year. That number is expected to go up. We need to find something to do with it. Now some of it's going to be more dangerous. Some of it's going to have more toxicity to it. But we need to find ways to deal with that, and we need to find what other people around the world are doing with it to find out how we might use beneficial use to apply some of this to other locations.

REP. COSTA: The gentleman's time has expired, but we thank you for those good questions.

It's the chair's intention to close the hearing after our last member has had an opportunity to ask their questions. I will ask members of the subcommittee who have further questions to submit them for the record. And, as I had mentioned on the outset, if you do that sooner rather than later, we give our witnesses an opportunity to respond to your questions on any of the points that have been discussed or the testimony that has been provided thus far.

Our last witness -- our last witness -- our last member, excuse me, of the subcommittee, a new member, who I met yesterday, a gentlewoman from Wyoming, Mrs. Lummis.

REP. CYNTHIA LUMMIS (R-WY): Thank you.

REP. COSTA: Welcome to the subcommittee.

REP. LUMMIS: Thank you very much, Mr. Chairman. I appreciate your hospitality last evening.

And like our full committee chairman, I share a concern for this subject because our states are major coal-producing states, mine the greatest coal-producing state in the nation. So it's very important to me to see that those products are used in a safe manner so they continue to be of use to the people of this country, for the benefit of the people in my state as well.

And I want you to know also, Mr. FitzGerald, that I could feel my own blood pressure go up when you were relaying the experiences of some of your clients, because I am a landowner who lives downstream from a RCRA facility that had a failed impoundment. And I remember what it feels like to have your land polluted in that manner and how helpless it feels.

And even under RCRA, sometimes more regulation throws up obstacles that allows a company that is not stewardship-oriented to just appeal and stall, and actually benefits them because of a regulatory scream -- scheme that is not a rifle shot.

So I think what we are looking for here is to find the rifle shot that will actually help the situation instead of providing opportunities for industries that are not stewardship-oriented to throw up roadblocks, and, certainly, that does not impair the abilities of companies that are stewardship-oriented from serving this country well.

My first question, thank you, is for Mr. Akins. Could you elaborate on the EPA's ongoing assessment of coal ash surface impoundments, such as an assessment timeline, how that assessment is being coordinated with the electric utility industry and such?

MR. AKINS: Yes. We've been working with the EPA, and the EPA is also working with the state agencies. And many of the states have already made the request for additional information in terms of engineering studies, in terms of inspections, in terms of the impoundment materials. Those types of things have been already accomplished. They're already in the progress (sic) of being done.

Now, EPA is somewhat shorthanded. I think they're dependent on the state agencies, and they're obviously dependent on us to actually produce that type of information. So that's an ongoing process that's occurring now.

Also, the Utility Solid Waste Activities Group has been involved with the EPA as well, because they have been working on standards to be applied across the industry associated with the monitoring of these areas. So there's a lot of work being done. I don't know what the timeline is. Maybe someone else does. But that's what I know about it at this point.

REP. LUMMIS: Thank you very much.

Mr. Craynon, could you respond as well? I'd like your feedback on whether the inventory of existing impoundments in this bill would add value to EPA's ongoing assessment, or is it duplicative?

MR. CRAYNON: Well, I hesitate to speak for my colleagues at EPA, but I would assume that they would welcome any input that added to what they've already got under way.

REP. LUMMIS: Thank you, Mr. Chairman.

I'd also like to ask Mr. Craynon, does OSM have the expertise to develop regulations for impoundments at power plants now, or is that something that they -- you would have to acquire?

MR. CRAYNON: As I mentioned in my testimony, impoundment safety has been a part of the surface mining regulatory program since the beginning. And we feel very confident in our ability to look at the engineering of impoundments, wherever they would be located. But this would expand the area that we would be responsible for.

REP. LUMMIS: Okay. Thank you very much.

A question for Mr. FitzGerald: You testified that the definition of impoundment should be broadened in the bill to encompass all embankment-type structures that retain these wastes, whether in a solid, semi-solid or liquid form.

And I want to ask, what is your reasoning for including solid coal materials in this definition?

MR. FITZGERALD: That's a good question. It would be solid coal combustion waste materials.

REP. LUMMIS: Okay.

MR. FITZGERALD: And the reason for including them is because they are a type of material -- and what we're looking at here is embankment-type landfills. They're a material that is -- will retain water. They're typically disposed of without daily cover, because there is no (putrescible ?) material there. And so they will be exposed to the elements, and they will become, over time, with that type of a disposal method, a semi-liquid. So they will start out in a solid form.

I'm not sure what Tennessee -- how Tennessee would have called this a landfill, okay? But this material, when it was being placed in there -- I don't know whether they would have considered it semi- liquid or solid. But I was trying to assure that any time you're building an embankment structure that is, of necessity, above grade, and you are placing this material in there, a hydrophilic material, that it would be regulated under rigorous standards, so that that impoundment would be able to withstand the potential that the material becomes saturated, would increase the saturated surface on the face of the impoundment, and eventually fail.

REP. LUMMIS: Okay.

Mr. Chairman, thank you kindly, and I'd also like to thank our witnesses for being here today.

REP. COSTA: Thank you for your good questions. And again, welcome to the subcommittee.

And I want to thank our witnesses as well, on behalf of the entire subcommittee, for your good work, your testimony. There may be further questions that will be submitted to you with regards to the issue at hand.

It is my understanding, from members of the subcommittee and those in the audience, that Chairman Rahall does intend to bring this matter to the full committee in the future for a markup, and the time to be determined by the chairman.

And so your testimony is timely, and I'm sure that there will be -- continue to be information and exchanges on that information as this bill moves forward. It is a work in progress. We appreciate all of your good work. Thank you very much.

The subcommittee is now adjourned. (Strikes gavel.)

END.

Source