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					      600 17th Street, Suite 2800 South
      Denver, CO 80202-5428


November 19, 2010

Via E-mail to: rcra-docket@epa.gov

Attention: Docket ID No. EPA-HQ-RCRA-2009-0640

Re:     Comments on Proposed Rule Regarding Listing of Special Wastes;
        Disposal of Coal Combustion Residuals from Electric Utilities
        75 Fed. Reg. 35128 (June 21, 2010)

Dear Sir/Madam:

        Citizens for Recycling First appreciates the opportunity to submit comments regarding
the Environmental Protection Agency’s proposed rules for coal ash disposal. Our organization
favors increasing regulation and improving engineering standards for coal ash disposal, but is
adamantly opposed to any regulatory approach that includes a Subtitle C hazardous waste
designation for coal ash.

       Citizens for Recycling First supports recycling coal ash as a safe, environmentally
preferable alternative to disposal. We believe that the best solution to coal ash disposal
problems is to stop throwing coal ash away. We believe that designating coal ash as hazardous
waste when disposed will create a crippling stigma that will significantly interfere with efforts to
continue recycling the resource.

About Citizens
        Citizens for Recycling First was formed in February 2010 specifically to address coal ash
recycling issues. More than 1,500 individuals have registered as supporters on the Citizens for
Recycling First web page and almost 3,000 are followers on Facebook. Well over 3,000
individuals have taken the time to send letters to EPA regarding its proposed coal ash rules
through the www.recyclefirst.org web site, as well.

         It is important to remember that these individuals are specifically interested in
preserving and enhancing recycling opportunities for coal ash. This is not a “grassroots
network” that has been established by spending millions of dollars in advertising to attract
people who subsequently send letters to EPA on all manner of topics. Citizens for Recycling
First is comprised largely of citizens with firsthand knowledge of coal ash recycling issues.
                                            Page 2 of 20



       Citizens for Recycling First also participated in all eight of the coal ash public hearings
sponsored by EPA during the public comment period. In all of these hearings, one point of
consensus stood out: Coal ash disposal regulations should be improved and incidents like the
Kingston coal ash spill should never be allowed to happen again.

         Beyond that, the citizen comments were divided. One group of citizens was vocal in
calling for a Subtitle C hazardous waste designation for coal ash. This group, for the most part,
has gained its knowledge of coal ash from large, well-funded, anti-coal environmental groups.
These well-meaning citizens end up being only partially informed because those major
environmental groups completely ignore options for safe and responsible recycling of coal ash.
We challenge you to find even a mention of coal ash recycling in any of their publications.

       The other group of citizens EPA heard from was comprised of people who have spent
decades doing what’s right for the environment – creating safe and environmentally beneficial
uses for coal ash that keep it out of landfills in the first place. These people are recyclers,
architects, engineers, concrete producers, farmers, and more. Most of them are small
businesspeople and all of them consider themselves environmentalists, too, because they are
working every single day to conserve energy and materials and reduce greenhouse gas
emissions. This group of citizens was unanimous in stating that a Subtitle C hazardous
designation for coal ash will wreck recycling of the material in this country and possibly
worldwide.

       In announcing the coal ash disposal regulations rulemaking, EPA Administrator Lisa
Jackson indicated that the Agency wants to hear from citizens. Unfortunately, we are
concerned that EPA often misconstrues the term: “Citizens.”

        For instance, consider how an official of the EPA chose to label the opinions of various
parties who were commenting on the outlook for new coal ash regulations. In a presentation
for an Air and Waste Management Webinar on December 10, 2009, Robert Dellinger, Director
of EPA’s Materials Recovery and Waste Management Division, summarized “Positions of
Outside Groups.”

        Three groups were listed as opposed to any “hazardous” designation for coal ash –
States, Federal Agencies, and Industry. But “Citizen Groups” were listed as supporting full
hazardous waste regulation.

        In reality, these “Citizen Groups” are almost all – if not exclusively – environmental
special interest groups that actively lobby against coal use. This doesn’t make them any less
citizens, of course. But are they more citizens than the small business people, chambers of
commerce, city councils, professional engineers, and many others who have written to EPA in
opposition to a hazardous designation? EPA should not ignore these citizens or toss them into
the category of “Industry.”
                                            Page 3 of 20


       People who recycle coal ash in safe and environmentally beneficial ways are also people
who vote, pay taxes, participate in their communities and care about the environment. They
also deserve to be afforded the title “Citizens.”

EPA’s Subtitle C Proposal: Ironic and Rife with Unintended Consequences
        On December 22, 2008, a containment dike at a Tennessee Valley Authority coal ash
disposal pond failed, spilling about a billion gallons of sludge over 300 acres and into a nearby
river. Calls for tougher regulation of coal ash disposal immediately followed. Then the ironies
started piling up.

        First, the federal government decided that the best way to respond to an engineering
failure at a power plant owned by a unit of the federal government (TVA) would be to place all
power plants under regulation by a unit of the federal government (Environmental Protection
Agency).

       Next, EPA concluded that the only legal way to get federal jurisdiction over power plant
ash disposal would be to declare the material a “hazardous waste” – despite the fact that two
previous EPA Reports to Congress and two formal EPA Regulatory Determinations had
concluded that no such designation was warranted.

       Next, EPA began supervising the clean-up of the TVA disaster. The agency’s solution:
Transport the material EPA is preparing to label as “hazardous” to a non-hazardous landfill in
the next state and to stabilize large amounts of the material in place.

       Meanwhile, what should have been a discussion about engineering standards for coal
ash disposal morphed into a debate about the coal ash itself. That is both misguided and
unfortunate. If a billion gallons of skim milk had spilled into a river, that also would constitute
an environmental disaster. But wouldn’t the focus be placed on ensuring the safety of milk
tanks rather than demonizing the milk?

         If EPA moves forward with its plan to designate coal ash as “hazardous” even for the
limited purposes of disposal, it will stigmatize the resource and make it unattractive for
recycling. The unintended consequences: Millions more tons of waste to dispose each year and
millions more tons of greenhouse gas emissions manufacturing products to replace the coal ash
that is successfully recycled today.

Misuse of the Term “Toxic” is a Tragic Byproduct of EPA’s Rulemaking
        Since the failure of the Tennessee coal ash disposal pond in 2008, the phrase “toxic coal
ash” has become a favorite of anti-coal environmental groups and environmental news
reporters everywhere. Too bad most of them have never bothered to consider what “toxic”
really means.
                                           Page 4 of 20


       Some people seem to think a material must be toxic if it has heavy metals such as
mercury or arsenic in it. But testing data from the Electric Power Research Institute clearly
shows that trace elements collectively comprise less than 1 percent of coal ash volume.
Furthermore, the levels of these metals in coal ash are similar to the levels found in other
everyday materials. More important than whether metals are present in a given material is
whether the metals can get out of the material and into you. Once again, Electric Power
Research Institute data shows that the leaching potential of metals in coal ash is well below
acceptable limits.

          A material is "toxic" when a toxin (or poison) escapes from the material and affects a
person or organism. Toxins present in coal ash are metals that are also present in most
everyday materials. The levels of metals in coal ash are similar to the levels of the same metals
in materials coal ash replaces when it is recycled (i.e. portland cement and aggregates.) Many
of the metals of concern are ubiquitous in other products (i.e. mercury in light bulbs and dental
fillings; arsenic in treated lumber; selenium in your multivitamin tablet, etc.)

        The standard test used by EPA to establish whether any material is "toxic" and qualifies
as a "hazardous waste" is the Toxicity Characteristic Leaching Procedure (TCLP). Coal ash does
NOT qualify as a "toxic" hazardous waste based on this procedure.

        EPA's current coal ash disposal rulemaking does NOT claim that coal ash qualifies as
hazardous waste based on its toxicity. EPA's proposed justification for a hazardous waste
regulatory approach is based on "damage cases" related to failed disposal impoundments -- not
on the toxicity of the material itself. Furthermore, the actual landfill engineering standards
being proposed by EPA are essentially the same under BOTH the hazardous and non-hazardous
proposed approaches. (Single liner systems with groundwater monitoring and phase-out of wet
impoundments.) A truly "toxic" material would be subjected to double liner and leachate
collection systems that EPA is NOT proposing even under its "hazardous" proposal.)

       So just how toxic is “toxic coal ash?” It falls well short of the levels defined by the U.S.
Environmental Protection Agency to qualify as a hazardous waste. Coal ash is also far more
benign than municipal solid waste – a material regulated by states and safely handled by
communities big and small. (More than 250 million tons of household waste is disposed in
more than 1,600 landfills around the United States every year.) Municipal solid waste leachate
is more noxious than ash leachate, is biologically active, emits explosive gases, contains sewage
sludge ash as a component, attracts rodents and birds, and so on. None of these conditions can
be found in coal ash.

       When confronted with the fact that coal ash does not qualify as a “hazardous waste”
based on standard accepted laboratory tests, anti-coal environmental activists have a simple
answer: Find a test that gives different results. EPA’s request for comments on alternative
leaching test methods appears to be in response to this special interest desire to change the
playing field. Citizens for Recycling First would simply ask: Why is it appropriate to single out
coal ash for testing in a different way than everything else?
                                             Page 5 of 20



         TCLP testing is used to characterize all sorts of substances – not just coal ash. It’s also a
fact that coal ash rarely, if ever, exceeds hazardous waste criteria contained in the procedure.
The new test for coal ash that EPA seeks comments on may provide a more comprehensive set
of data than TCLP produces, covering a wide range of possible environmental conditions
including extremes. The procedure may prove useful in making site specific management
decisions regarding coal ash disposal. However, the test is still in the developmental stages.
EPA is just beginning validation tests for the laboratory procedure, and guidelines for
interpreting the large amounts of data it would produce have not yet been developed. It is not
scientifically suitable for concluding whether an entire class of materials is “hazardous” and it
will likely never be suitable for that purpose.

        Activists who use extreme data derived from un-validated testing procedures to try to
justify wholesale changes to environmental regulations that have been developed over decades
are not pursuing what’s best for the environment. They are pursuing a political agenda
dedicated to the elimination of coal-fueled energy.

EPA’s Own Actions Show Awareness of Real World Risk (or Lack Thereof)
       New engineering standards for coal ash landfills would be essentially the same under
two scenarios presented by the U.S. Environmental Protection Agency. So why does one of the
scenarios risk damaging coal ash recycling by labeling ash as hazardous? Because the federal
EPA wants to take regulatory enforcement authority away from individual states.

        On June 21, 2010, EPA released a “proposed rule” that outlines two broad approaches
to strengthening coal ash disposal regulation. Both approaches are under the Resource
Conservation and Recovery Act (RCRA). Subtitle D of RCRA allows EPA to set standards that get
enforced by the states. Subtitle C of RCRA is enforced by federal EPA.

       The June 21 EPA proposal contains both Subtitle D and C approaches, but the guidelines
for how landfills would be constructed and monitored is essentially the same under both
approaches. (See EPA’s own comparison of the approaches on pages 19 and 20 of this
summary presented by EPA to state solid waste management regulators:
http://www.recyclingfirst.org/pdfs/14.pdf )

        Subtitle C is the section of RCRA that pertains to hazardous wastes. EPA’s proposal does
not claim that coal ash qualifies as a hazardous waste based on its toxicity characteristics. By
suggesting a Subtitle C approach, EPA is simply trying to gain broad enforcement authority
while risking permanent damage to coal ash recycling from the “hazardous” stigma that would
be created.

        Even under Subtitle D, which is primarily enforced by the states, the federal EPA can
step in to directly regulate any site that poses an imminent danger to public health or the
environment. So EPA’s proposal for broad Subtitle C enforcement authority is more about
                                           Page 6 of 20


empire building for federal regulators than for actually improving protections for the
environment.

        Not only are landfill engineering standards essentially the same under EPA’s hazardous
and non-hazardous approaches, EPA has recognized that non-hazardous landfill standards
would be protective of human health and the environment in the clean-up it has supervised at
the site of the TVA ash spill. That material was largely stabilized on site, with other materials
being transported to a non-hazardous landfill.

       Landfills won't be any stronger or better under EPA’s Subtitle C proposal – nor do they
need to be. But coal ash recyclers will be saddled with a hazardous waste stigma that will make
continued recycling of this resource difficult or impossible.

Minimal Damage Has Been Seen at EPA’s Own “Damage Cases”
       Environmental activist groups frequently refer to coal ash as a “known threat to our
health and environment.” But what do public health experts find when they actually study the
material? Answer: Quite a different story.

         Here’s the kind of rhetoric activist group Earthjustice used to urge people to contact the
president and demand hazardous waste regulations for coal ash: “Coal ash contains dangerous
pollution… that can cause cancer and lung disease, damage internal organs and nervous
systems, and cause developmental problems in babies and young children.” “This waste… poses
a significant threat to our health and environment.” “A coal ash pond in Tennessee… poisoned
rivers and water supplies.”

       The failure of that Tennessee pond was by far the largest spill of coal ash in history. So
how bad were the health impacts? The Tennessee Department of Health, under cooperative
agreement with the U.S. Department of Health and Human Services Agency for Toxic
Substances and Disease Registry, has produced a 240-page Public Health Assessment of the
incident. Here is a summary of the health impacts in the experts’ own words:

         “No harm to the community’s health is expected from touching the coal ash. Even
though touching the coal ash could cause local skin irritation, the metals in the ash are not
likely to get into people’s bodies from merely touching the coal ash.”

       “Using municipal drinking water from the Kingston and Rockwood water treatment
plants will not harm people’s health because the raw and finished water have continuously met
drinking water standards. Also, using well or spring water within four miles of the coal ash
release will not harm people’s health from exposure to coal ash or metals in the coal ash
because no evidence has been found for groundwater contamination by coal ash.”

        “Using the Emory River at the site of the coal ash release (near Emory River mile 2)
could result in harm to residents or trespassers from physical hazards associated with cleanup
efforts and from the volume of ash present, if residents or trespassers entered the area. No
                                          Page 7 of 20


harm to people’s health should result from recreational use of the Emory, Clinch and Tennessee
Rivers outside the area of the lower Emory River down to the confluence of the Emory and
Clinch Rivers, as specified in the recreational advisory and river closure. As the advisory
indicates, people are advised to avoid areas where they see ash, however, even if it is outside
the area of immediate impact. Previous fish advisories should be followed.”

        “Breathing ambient air near the coal ash release is not expected to harm people’s health
as long as adequate dust suppression measures are in place. No harm to people’s health is
expected from occasionally breathing coal ash if it should become airborne for short periods of
time. If dust suppression measures should fail and particulate matter is present in
concentrations greater than National Ambient Air Quality Standards due to the coal ash
becoming airborne for periods longer than one day, the department concludes that particulate
matter from airborne coal ash could harm people’s health, especially for those persons with
pre-existing respiratory or heart conditions.”

       The Public Health Assessment was reviewed by universities and several government
agencies, including the U.S. Environmental Protection Agency.

        Another expert medical study of 214 people who live near the Kingston, Tennessee, coal
ash spill concluded they have suffered no serious health effects from the incident and are not
expected to develop health problems in the future.

        The study was led by epidemiologist Donna Cragle, vice president of Occupational
Exposure and Worker Health for Oak Ridge Associated Universities. Physician medical
toxicologists from Vanderbilt University Medical Center also assisted in the study.
Study participants received extensive medical testing that included health history, physical
examination, spirometry (breathing test), chest x-ray, routine urinalysis, complete blood count,
blood chemistries, and biological monitoring tests. The biological monitoring tests were chosen
to examine for evidence of effects on the body related to exposure to fly ash and included
testing for aluminum, arsenic, barium, beryllium, chromium, cobalt, copper, nickel, selenium,
thallium, and vanadium.

       “Analysis of the available data from this baseline medical examination suggests no
expected long-term effects on physical health from current levels of exposure,” the report
concluded.

        In another report published in June 2010, researchers from Oak Ridge National
Laboratory announced that fish downstream of the coal ash spill appear healthy based on the
first year of testing.

        The U.S. Environmental Protection Agency also issued a Final Site Inspection Report for
the Battlefield Golf Club Site – another cited “damage case” – showing “…there is no significant
threat to public health or the environment from site related contaminants…”
                                            Page 8 of 20


        Battlefield Golf Club attracted national attention in October 2009 when the television
news program 60 Minutes profiled the site as part of a report CBS said was an “investigation
into a substance that contains the toxic metals mercury, arsenic and lead but has yet to be
regulated by the EPA…” Coal ash was used in the construction of the golf course and 60
Minutes prominently featured interviews with local residents who claimed their health was
being threatened. (60 Minutes also interviewed the attorney who is representing the residents
in a lawsuit seeking money from entities involved in the golf course’s construction.)

        EPA’s report dated April 16, 2010, paints a very different picture. The 285-page report
details the results of an extensive scientific investigation of the site. It concludes that drinking
water wells in the area are safe, that metals present in the coal ash used at the golf course are
not migrating into the drinking water wells, and that no adverse health or environmental
effects are expected from the use of the golf course itself. In the report’s own words:

       •   “Metal contaminants were below MCLs and Safe Drinking Water Act (SDWA) action
           levels in all residential wells that EPA tested, except for lead. Lead has been detected
           during EPA sampling events above the action level of 15 μg/L in six residential wells,
           but the lead does not appear to be from the fly ash. EPA has offered to test the
           water of the residences with elevated lead on a quarterly basis.

       •   The residential well data reviewed as part of this SI indicates that metals are not
           migrating from the fly ash to residential wells.

       •   There are no adverse health effects expected from human exposure to surface
           water or sediments on the Battlefield Golf Course site as the metal concentrations
           were below the ATSDR standards for drinking water and soil. Additionally, the
           sediments samples in the ponds were below EPA BTAG screening levels and are not
           expected to pose a threat to ecological receptors.”


Advocates for Subtitle C Consistently Publish Misleading Information
       Environmental activists like to portray themselves as Davids battling corporate Goliaths,
but they are clearly the big spenders during public hearings on proposed Environmental
Protection Agency coal ash disposal rules.

       A full page full color advertisement in the Denver Post was purchased by the Sierra Club
on September 1, 2010 – the day before an EPA public hearing in that city. Based on the Post’s
published advertising rates for national non-profit organizations, that one-time ad would have
cost $42,971.11.

        The ad depicts a baby drinking from a bottle with the words “Mercury Arsenic Selenium
Lead” floating inside. The headline proclaims: “Ignoring the risks of toxic coal ash could come
at a high cost – our children.”
                                           Page 9 of 20



       The ad is just the latest in a series of big budget scare tactics undertaken by the Sierra
Club. The group has made obtaining a “hazardous waste” designation for coal ash one of its
highest priorities.

        On its web site promoted by the newspaper ad, the Sierra Club misleads its followers
with statements like: “The EPA is holding a public comment period on new, federally
enforceable standards to protect Americans, but the coal industry is fighting back, trying to put
their profits before our health.” In fact, the coal industry has endorsed the adoption of new
federal standards for coal ash disposal and is not the one taking out glossy full-page
advertisements before the hearings.

         Furthermore, the Sierra Club misleads its followers by asking them to advocate for
“stronger” regulation under Subtitle C, without disclosing that the landfill engineering
standards being proposed by EPA are essentially THE SAME under a Subtitle D proposal that
would not unnecessarily label coal ash as “hazardous waste” and potentially destroy recycling
activities that result in millions of tons of greenhouse gas emissions reductions every year. In
fact, the Sierra Club never discloses to its followers that coal ash CAN be safely recycled with
tremendous benefits to our environment.

       Major national environmental activist groups have sensationalized the coal ash
regulatory discussion by consistently using emotional rhetoric to frighten people about coal
ash. Here are a few more fictions being spun by the activist group Earthjustice as it urged
people to contact the president and demand hazardous waste regulations for coal ash:

       Earthjustice: “Coal and power industry lobbyists are… using power and influence to
misinform and misguide federal regulators.”

        Fact: Coal and power interests are only two of the industries that have voiced concern
about EPA’s apparent intention to label coal ash as hazardous. They’ve been joined by dozens
of local, state and federal elected officials, state environmental regulators, state departments
of transportation, public service commissions, coal ash marketers and users, professional
engineering societies, labor unions, and more.

      Earthjustice: “They are spreading rumors and false information about coal ash that is
impeding the EPA's ability to regulate this hazardous material.”

        Fact: Earthjustice doesn’t specify what the “rumors and false information” are. Nor do
they point out that EPA has studied coal ash for more than three decades and has issued at
least four previous Reports to Congress and Regulatory Determinations concluding that
hazardous waste regulation is not warranted.

        Earthjustice: “The EPA said there are at least 48 other coal ash sites that could pose a
similar threat of catastrophic collapse, potentially involving loss of life.”
                                          Page 10 of 20



       Fact: EPA has said that NONE of the 83 coal ash impoundments it has inspected pose an
immediate safety threat. (See Ash Blog for February 10, 2010.)
Earthjustice: “Communities across the country want strong regulations that designate coal ash
as hazardous waste.”

        Fact: Almost every state and local agency that has written to EPA about this issue has
specifically OPPOSED a hazardous waste designation because it is unnecessary, costly, and likely
to harm the ability to continue recycling coal ash in ways that significantly benefit the
environment.

       Among the many things environmental activist groups don’t say out loud is this: The
current focus on coal ash disposal is really not about coal ash – it’s about coal.

        Using the December 2008 Kingston coal ash spill as their springboard, environmental
groups that want to do away with coal use altogether are attacking coal ash without regard for
the substantial positive environmental benefits that come from its recycling. They don’t care
that labeling coal ash as “hazardous” would result in the loss of millions of tons of greenhouse
gas emissions reductions every year. By pursuing an excessive “hazardous” designation, they
are simply trying to inflict the highest possible costs on coal-fueled power generators – thereby
making coal less competitive in comparison to much higher priced and less reliable renewable
energy sources.

       Case in point: The November-December 2009 issue of the Sierra Club’s magazine
contained an article is entitled “Solving the Climate Puzzle, One Piece at a Time.” It called for
hazardous waste regulation of coal ash disposal. The main illustration showed a crane lifting a
puzzle piece labeled “Coal Ash Regulation” into place.

        The article doesn’t spell out that the only way hazardous waste regulations for coal ash
disposal could possibly reduce greenhouse gas emissions is by driving coal-fueled power plants
out of business. (By the way, there’s also no realistic plan suggested for how to replace the
energy resource that generates half of our electricity if they were successful in shutting it
down.)

        The article also doesn’t say anything about the greenhouse gas emissions reductions
that are created when coal ash is used to replace portland cement in the production of
concrete.

        Another example of anti-coal environmental groups becoming increasingly outlandish in
their attacks on coal ash – while completely ignoring the environmental benefits of recycling –
can be seen in an e-mail from Clean Water Action with the subject line: “Would you bathe in
sewage?”
                                          Page 11 of 20


       Clean Water Action is a national environmental group that, according to their
“nonprofit” tax records, raises more than $10 million a year in individual contributions. What
motivates so many people to give so much? Here are excerpts from the January 27, 2010, e-
mail:

       “There was a time, many centuries ago, when people bathed in raw sewage. After the
plague broke out, in part due to such practices, Europeans discovered that attempting to clean
oneself with excrement was not only unsanitary but contributed to the spread of death and
disease across the continent.”

       “Here in 2010, we spread coal ash - the toxic byproduct of coal-fired power plants - onto
our roads and bury it in leaky landfills. We can't imagine bathing in a medieval toilet, yet coal
ash contaminates groundwater and surface water, posing devastating health risks to us all.”

       The e-mail, of course, includes a handy link to “Support Clean Water Action by making a
donation today.” A visit to the organization’s web site also reveals a prominent link to “Donate
Now” at the top of its home page.

       Environmental groups that are truly interested in improving our environment could
demonstrate their commitment by supporting the safe recycling of coal ash as the preferred
alternative to its disposal. Environmental groups that are mainly interested in padding their
treasuries, on the other hand, will probably continue issuing breathlessly absurd claims like
Clean Water Action’s.

        Another Washington DC activist group actually went so far as to demand that the
federal government ban the use of coal ash in federal construction projects – despite the fact
that official federal policy since 1983 has been to encourage the practice.

        Public Employees for Environmental Responsibility – a group that also sponsors
campaigns to protest road kill and ships running into whales – has petitioned the White House’s
Council on Environmental Quality to completely reverse long-standing policies that encourage
recycling. "If the federal government is truly going to reduce its carbon footprint, banning coal
ash is an unavoidable step," stated PEER Executive Director Jeff Ruch.

        PEER is the same group that in July 2010 petitioned the Environmental Protection
Agency to rescind its calculations of the greenhouse gas emissions reductions that are
attributed to using coal ash to replace cement in concrete. PEER does not appear to be
challenging the fact that fly ash use offsets greenhouse gas emissions from cement production.
However, they appear to be claiming that EPA should assign to coal fly ash all of the greenhouse
gas emissions associated with electricity production.

        EPA – under both Democrat and Republican administrations – has long supported the
recycling of coal ash. In 1983, EPA published its first federal procurement guideline requiring
agencies using federal funds to implement a preference program favoring the purchase of
                                          Page 12 of 20


cement and concrete containing coal fly ash. In the years that followed, EPA published
numerous guidance documents on the use and environmental benefits of coal ash recycling. In
2003, the agency created the Coal Combustion Products Partnership (C2P2) program to further
promote the safe and environmentally beneficial recycling of coal ash.

       PEER has also been active in criticizing the C2P2 program, referring to it in a recent
newsletter article as “An Unholy Alliance… pushing toxic coal ash in carpet backing, wallboard,
kitchen counters and even toothpaste and cosmetics.” Rather than defend nearly three
decades of EPA actions to encourage safe coal ash recycling, the current Environmental
Protection Agency responded to the PEER attacks by abruptly and unilaterally suspending the
C2P2 program and deleting its information from the EPA web site.

       Although EPA continues to profess that it supports legitimate coal ash recycling, it is
providing essentially no information to the public on that topic – leaving the field clear for
outrageous claims by PEER and like-minded anti-coal activists.

        The coal ash greenhouse gas reduction figures long accepted by EPA and other
regulatory agencies worldwide recognize that the greenhouse gas emissions from coal-fueled
power plants are associated with the production of electricity and would exist whether the fly
ash is beneficially used or not. PEER wants fly ash to count the emissions from burning the coal
as part of its greenhouse gas footprint, even though no one would ever burn coal just to make
ash.

       If environmental activists were truly interested in doing the right thing for the
environment, they would support policies that encourage safe coal ash recycling as a preferred
alternative to disposal. But ads with pictures of bridges that last longer probably don’t
generate the same kind of membership support as scary pictures of babies drinking tainted
water. After all, money for the next big ads has to come from somewhere…

Personal Injury Lawyers Would Win Big with Subtitle C
      Anti-coal environmental activists are eager to label coal ash as “hazardous,” but there is
another group that would be happy to see that take place: personal injury lawyers.

       Personal injury lawyer web sites with names like “aboutlawsuits.com” are already
following coal ash in the wake of the December 2008 Kingston impoundment failure. Anyone
who has ever watched late night television can figure out what their interest is. Consider this
excerpt from a web site entitled “injuryboard.com”:

       “The chemicals found in coal ash can cause serious health problems, and in some
instances of high exposure, death. See your doctor if you suspect that your drinking water may
be contaminated with chemicals from a nearby coal ash depository. In addition, it may be
important to contact an attorney who can help you protect your legal rights. Please keep in
mind that there may be time limits within which you must commence suit.”
                                           Page 13 of 20


       So what happens if environmental groups get their way and convince the U.S.
Environmental Protection Agency to overturn two previous regulatory determinations and
designate coal ash as “hazardous waste” when disposed? Ash that goes into a landfill would be
“hazardous,” but ash that gets used in the construction of homes, schools, roads and more
would not.

        Think about it. If coal ash spills out of a truck on the way to a concrete production plant,
does it require a hazardous waste clean-up? Can workers file claims for being exposed to a
hazardous waste? Can homeowners? Will trucks carrying coal ash require hazardous waste
placards? The lawyers can have a field day.

        Environmental activists counter that we use hazardous materials every day – like
gasoline. But if you drive a car, you can’t choose whether or not to use gasoline. If you build
things, you can choose whether or not to use recycled materials containing coal ash and even if
lawsuits are frivolous, you will probably choose to avoid the time and expense of defending
them.
        Coal ash does not qualify as a hazardous waste based on its toxic characteristics. Coal
ash disposal standards can be improved without taking the unwarranted and damaging step of
declaring the material to be something that it is not.

The Big Loser from Subtitle C Would Be Our Environment!
       At public hearings on EPA’s proposed coal ash rule, Citizens for Recycling First had
numerous conversations with people who belong to organizations that are committed to
reducing greenhouse gas emissions linked to climate change. Most of these people had no idea
that coal ash is used to replace portland cement in the production of concrete – an activity that
reduces greenhouse gas emissions from cement production by more than 12 million tons every
year.

       It's not surprising that people do not know this. The major environmental activist
organizations that favor a hazardous waste designation for coal ash never mention that ash can
be recycled safely with tremendous benefits for the environment. The Environmental
Protection Agency has further contributed to this lack of understanding by removing its Coal
Combustion Products Partnership web site from the Internet just when the need for
information about coal ash recycling is at its greatest.

        Many people testifying at the hearings indicated a desire to see the use of coal
disappear altogether. However worthy that goal is, it will not happen overnight. Like it or not,
coal will continue to be burned in significant quantities for many years to come. So the question
remains: What should we do with the ash that is left over?

        Recycling coal ash keeps it out of landfills and ponds where it can cause the kinds of
problems we will hear much about during today's hearing. Recycling it in applications such as
concrete production produces additional benefits like greenhouse gas emissions reductions
that are important to everyone.
                                           Page 14 of 20



        Almost half of America’s electricity is generated by burning coal. That figure is not likely
to change much in the future. Because Americans continue to consume more electricity every
year, renewable energy sources will do well just to keep up with increases in demand. The U.S.
Department of Energy predicts that in 2030, we will actually generate 19 percent more
electricity from coal than we did in 2007.

        Generating that much electricity produces large volumes of coal ash — solid materials
left over from the combustion process. According to the American Coal Ash Association, about
136 million tons of this material was produced in 2008. The good news is that over 44 percent
of it was recycled rather than disposed.

        There are many good reasons to view coal ash as a resource, rather than a waste.
Recycling it conserves natural resources and saves energy. In some cases, products made with
coal ash perform better than products made without it. For instance, coal ash makes concrete
stronger and more durable. It also reduces the need to manufacture cement, resulting in
significant reductions in greenhouse gas emissions. About 12 million tons of greenhouse gas
emissions were avoided by using coal ash to replace cement in 2008 alone.

Stigma is Real and Already Affecting Coal Ash Recycling
        No one wants to be responsible for damaging a recycling program that prevents millions
of tons of greenhouse gas emissions every year. So proponents of a “hazardous” designation for
coal ash when it is disposed often claim the label won’t affect recycling. Some especially
credible government agencies have disagreed for many years.

       In June of 2008, the U.S. Environmental Protection Agency – in cooperation with the
U.S. Department of Transportation and U.S. Department of Energy – authored a study for
Congress regarding “Increasing the Usage of Recovered Mineral Components in Federally
Funded Projects Involving Procurement of Cement or Concrete.” Recycling coal ash was a major
focus of the study.

        Section Four of the study addresses barriers to increasing recycling rates for materials
like coal ash and cites a long list of “barriers” studies stretching back to at least 1994. In every
barriers study, the issue of waste regulations arises. For instance, the 2008 EPA study
concludes:

       “Although many states are acting to facilitate the use of RMCs in concrete, some state
solid waste regulations governing the management of RMCs may make it more difficult to
beneficially use these materials.”

         “Another barrier to the expanded beneficial use of RMCs concerns the safety and health
risks – real or perceived – associated with these materials…”
                                            Page 15 of 20


       Study after study by the EPA and others have concluded that solid waste regulations
often negatively affect recycling efforts. Furthermore, a “hazardous waste” designation for ash
disposal would create a perceived risk that would erect the biggest barrier of all.

       Anti-coal environmental activists tell the EPA that it’s OK to label coal ash “hazardous
when disposed” because people will still want to recycle it. Here’s an excellent example of just
how disconnected from reality that position is:

       Green-buildings.com is a resource that offers education and training in the field of
sustainable construction, including the U.S. Green Building Council’s Leadership in Energy and
Environmental Design (LEED) program. It serves the architects and engineers who decide
whether to use coal ash in building projects.

       In an “advice column” last week, a reader asked the question: “I saw a 60 Minutes
episode on fly ash and it said it was a toxic material, but this is still being used in a lot of green
products. Is it toxic? Is it safe? What is the real story?”

        The answer provided by an “expert” at Green-buildings.com included gems like this:

      “Coal ash contains many toxic metals, including arsenic, lead, mercury, selenium,
cadmium and other toxic metals. Coal ash, if left unchecked, can leak into ground water and be
extremely hazardous to breathe. So there’s no doubt this isn’t something most of us would feel
comfortable having hang around our neighborhood.”

         In fact, many of the building materials these architects and engineers use every day
contain the same metals. The expert is correct in pointing out that it only becomes a health
issue if the metals can get out of the materials and into people in significant concentrations.
But she makes no effort to determine if that is the case for common construction uses of coal
ash. Nor does she make any attempt to describe any of the numerous ways coal ash use
benefits the environment and improves the performance of building materials. Instead she
concludes:

       “I don’t have a definite black and white answer on this myself, so I’ll just leave things in
the gray area for now (no pun intended) and allow you to sort out the decision for yourself.”

       If a Green-buildings.com “expert” can’t sort this out, do we really expect every other
architect and engineer to do so? Of course not. If it’s hazardous “when disposed” why is it not
hazardous when used in a building project? There are answers to that question that satisfy the
EPA and environmental activists, but the people who really matter – the users of the recycled
material – won’t take the time to understand them.

       But it gets worse. Competing product manufacturers stand ready to fan the flames of
uncertainty that would be created by EPA’s potential “hybrid” approach to coal ash disposal
regulation.
                                           Page 16 of 20



       Case in point: For decades, boiler slag has been one of the most successfully recycled
products of coal combustion at power plants. According to the American Coal Ash Association,
a whopping 83.3 percent of boiler slag was recycled in 2008. Almost 1.5 million tons of the
material was used for blasting grit and roofing granules. As a blasting grit, the material safely
replaced sand-based products that pose a risk of causing silicosis – a serious lung disease – in
workers using the products.

        A magazine advertisement that was published in December 2009 by a manufacturer of a
blasting grit product that competes with boiler slag-based products. “Is it safe to blast with coal
slag abrasives?” the ad declares. “Why take the chance…?” it concludes as it references
potential EPA actions to label the material “hazardous.”

       The advertisement doesn’t mention that EPA may only propose to treat some forms of
ash disposal as hazardous while continuing to support recycling. The entire resource is tainted
with an unwarranted hazardous stigma that competing product manufacturers are all too
happy to exploit.

      Additional attacks against coal ash-containing products have been launched by
competitive clay brick manufacturers and concrete block manufacturers who do not use coal
bottom ash.

        In EPA’s proposed rule, the agency cites examples of other hazardous materials that get
recycled in an attempt to deny the existence of stigma. The cited examples are not comparable
to coal ash for several reasons:

          Most examples cited by stigma deniers are of materials that get reprocessed before
they are reused. (Coal ash is not reprocessed before it is recycled and is mechanically and
chemically identical to coal ash that is disposed. This opens the door wide to litigation that will
ask: “If it’s hazardous over there, why is it not hazardous over here?”)

       Furthermore, most examples cited by stigma deniers are of materials that are reused by
the very industries that produced them. (Coal ash is widely dispersed to literally thousands of
locations in every community and is placed in products that come in direct contact with
everyday citizens.)

       Finally, many examples cited by stigma deniers are materials that do not compete with
alternative products. (Your gasoline-fueled car cannot operate without gasoline. Concrete and
other products can be made without coal ash. EPA has heard ample testimony that some
manufacturers of competitive products are already using the prospect of a hazardous waste
designation to sow fear among coal ash users.)

        As for the position that higher disposal costs will automatically lead to greater recycling
rates, please consider history: In 2000, the recycling rate for coal ash was 30 percent. In 2008,
                                           Page 17 of 20


it had increased to 44 percent – a nearly 50 percent increase in less than a decade. Did the cost
of disposal increase during that time? No. So what was responsible for this dramatic increase in
recycling rates?

        Answer: In 2000, the Environmental Protection Agency issued its Final Regulatory
Determination that concluded coal ash does not warrant regulation as a hazardous waste. That
sent a clear signal to producers, marketers and users of coal ash who began to invest more in
the infrastructure necessary to support recycling. In 2002, the Environmental Protection
Agency accelerated this effort by creating the Coal Combustion Products Partnership, or C2P2
program, to actively promote recycling as a preferred alternative to disposal.

        Sadly, EPA has now reversed this trend by creating a new era of regulatory uncertainty
and by stepping back from its visible support for recycling. As a result, investments in the
infrastructure necessary to support recycling have stalled and recycling rates have already
begun to drop.

       For those who deny the existence of stigma, just two questions should be asked: First, if
the EPA is right and a hazardous waste designation would motivate people to recycle more ash,
then why are the people who make their livings as recyclers unanimously opposed to it?
Wouldn't they be in favor of something that would help them make more money? Perhaps it is
because the people who recycle ash every day are well aware of the response you and your
neighbors would give to the second question: Would you want something that is classified as a
hazardous waste in your home, school or workplace?

No One is Arguing for the Status Quo
       America’s foremost association of electric utilities, coal ash recyclers, and allied
industries has formally endorsed federal oversight of coal ash disposal – debunking
environmentalist claims that industry is trying to evade regulation.

       In a resolution unanimously approved April 12, 2010, by the 50-member Board of
Directors of the American Coal Ash Association, the group indicated that it supports federal
regulation of coal ash disposal under Subtitle D of the Resource Conservation and Recovery Act.

       The American Coal Ash Association was established in 1968 to support recycling of the
materials created when coal is burned to produce electricity. While other organizations focus
on disposal issues, ACAA's mission is to advance the management and use of coal combustion
products in ways that are environmentally responsible, technically sound, commercially
competitive, and supportive of a sustainable global community.

       Anti-coal environmental groups have wrongly accused industry of trying to stymie
development of new coal ash disposal regulations by the U.S. Environmental Protection Agency.
ACAA’s resolution conclusively shows that industry actually supports EPA regulation. What it
opposes is any unjustified and unnecessary designation of coal ash as “hazardous waste” – a
                                          Page 18 of 20


step that would seriously complicate efforts to continue recycling the material as a preferred
alternative to disposal.

       ACAA’s resolution notes that federal Subtitle D regulation would take effect sooner than
“hazardous” regulations could, that thousands of green jobs would be saved and that negative
impacts to coal ash recycling would be avoided.

Conclusion: EPA’s Choice is Between Misconceptions and Common Sense
       There are four key points that address common misconceptions that have been
frequently stated during EPA’s coal ash rulemaking public comment period:

        Number One: Coal ash does not qualify as a hazardous waste based on its toxicity. This
is not an opinion. It is a fact that standardized tests show that the levels of metals in coal ash
are below the amounts established for listing it as a hazardous waste. In recycling settings, the
toxicity of coal ash is similar to the toxicity of the materials it commonly replaces.

        Number Two: EPA's proposed Subtitle D and Subtitle C regulatory approaches are both
protective of human health and the environment. The landfill constructions standards proposed
are essentially the same in both proposals. EPA's Subtitle C proposal is not "stronger." The key
difference between the proposals boils down to who gets to enforce the new regulations that
EPA establishes – new regulations that are far from “business as usual” in either option.

       Number Three: Stigma is real. Labeling coal ash as hazardous waste when it is disposed
creates enormous barriers to recycling. Producers, marketers and users of coal ash have been
unanimous in expressing this fact during the public hearings. The only people claiming stigma is
not real are people with no direct involvement in the recycling effort.

        Number Four: Stigma is already taking a toll on recycling as a result of this debate.
Specifiers and users of coal ash are already beginning to remove the material from projects
because of regulatory uncertainty and fear of future liabilities. Manufacturers of products that
compete with coal ash are actively using this forum to make false claims about dangers of using
coal ash. And we have seen numerous witnesses at these very hearings express fear regarding
long established beneficial uses of coal ash – proving the point that the drumbeat of the terms
"toxic" and "hazardous" dramatically affects consumer behavior.

        The people who work every day to recycle coal ash are extremely disheartened by this
debate. Many of them have devoted entire careers to do something good for our environment.
They now feel betrayed by the Environmental Protection Agency and environmental groups
that appear resolved to ignore and sacrifice the benefits of recycling in their single minded push
for federal enforcement authority.

       In announcing the Agency’s proposed coal ash disposal rule on May 4, EPA
Administrator Lisa Jackson said: "The time has come for common-sense national protections to
ensure the safe disposal of coal ash." Citizens for Recycling First agrees with the Administrator.
                                          Page 19 of 20



       Common sense tells us that utilities will be reluctant to allow a material classified as
“hazardous waste” on their own property to be distributed for recycling at literally thousands of
locations around the countryside.

       Common sense tells us that architects and engineers who are sworn to put human
health and safety first will be reluctant to require use of a material that is classified as
“hazardous waste” in another location.

          Common sense tells us that users of coal ash will be reluctant to take on the potential
liabilities and additional operational requirements that may come with using a material that is
classified as “hazardous waste” in another location.

        Common sense tells us that everyday citizens will be greatly alarmed if they find out that
a building material used in their homes, schools, offices and roadways is classified as a
“hazardous waste” in another location.

        Common sense says that risking an entire recycling industry over a regulatory turf battle
is a bad idea. Common sense says that new coal ash disposal regulations should be enacted
under Subtitle D and EPA should work to promote safe and environmentally beneficial recycling
as a preferred alternative to disposal.

A Challenge to EPA: Do the Right Thing for the Environment
        EPA’s proposed coal ash disposal regulations are under the authority of the Resource
Conservation and Recovery Act. The EPA office conducting these hearings has Conservation and
Recovery in its name. Unfortunately, there is little or no focus on Conservation and Recovery in
this regulatory proposal or by this Administration's EPA in general.

         Previous EPAs under both Democrat and Republican administrations have concluded
that coal ash does not warrant regulation as a hazardous waste. Furthermore, EPAs under both
Democrat and Republican administrations previously worked to put conservation and recovery
first through programs like Comprehensive Procurement Guidelines and the Coal Combustion
Products Partnership, also known as the C2P2 program. All of these efforts recognized that coal
ash is a valuable resource that can be recovered and used rather than disposed in landfills and
impoundments, a handful of which performed inadequately and brought us here today.

       EPA Administrator Lisa Jackson has called for "common sense" coal ash disposal
regulations. Common sense says it's better to safely use something instead of throwing it
away. Common sense says it's better to conserve natural resources by using a recovered
material rather than mining or manufacturing new ones. Common sense says conserving energy
and reducing greenhouse gas emissions by millions of tons each year are environmental
benefits worth protecting. And common sense says people will not want to use a material on
their own property if it is considered "hazardous waste" on the property of the person who
made it.
                                           Page 20 of 20



        For those who want to saddle coal ash with a hazardous waste label, here are some
inconvenient truths: Coal ash does not qualify as a hazardous waste based on its toxicity and its
toxicity is similar to that of the materials it replaces when it is recycled. The landfill engineering
standards being proposed by EPA are essentially the same under both EPA's hazardous and
non-hazardous approaches, so you're not giving the environment more protection with a
hazardous label. Finally, EPA's non-hazardous approach can be implemented years sooner --
getting greater protection for our environment now instead of later.

        Common sense and the spirit of conservation demand the Subtitle D non-hazardous
approach. It will improve coal ash disposal standards faster and do it without destroying
recycling efforts with an unnecessary "hazardous" stigma.

Sincerely,

John N. Ward
Chairman
Citizens for Recycling First

				
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