Analysis of Recent Proposals to Amend the Resource Conservation and Recovery Act (RCRA) to Create a Coal Combustion Residuals Permit Program

Congressional research reportMar 19, 2013

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Analysis of Recent Proposals to Amend the

Resource Conservation and Recovery Act

(RCRA) to Create a Coal Combustion

Residuals Permit Program

(name redacted)

Analyst in Environmental Policy

(name redacted)

Specialist in Environmental Policy

(name redacted)

Section Research Manager

March 19, 2013

Congressional Research Service

7-....

www.crs.gov

R43003

CRS Report for Congress

Prepared for Members and Committees of Congress

Analysis of Recent Proposals to Amend RCRA

Summary

In the 112th Congress, the House passed two bills to address the long-standing regulatory impasse

over coal combustion residuals (CCRs). The impasse originated in 1980, when an amendment to

the Resource Conservation and Recovery Act (RCRA) excluded CCRs from regulation as a

hazardous waste, pending further study by the Environmental Protection Agency (EPA). That

study was required to identify adverse effects on human health and the environment, if any, of

CCR disposal and use before determining whether the materials should be subject to hazardous

waste requirements.

For over 30 years, EPA has gathered information, conducted studies, solicited input from state

agencies, industry, and the public, and evaluated existing state and federal regulatory programs to

determine whether the management of CCRs warranted regulation as a hazardous waste. In June

2010, EPA proposed its most recent regulatory determination for public comment. In that

proposal, EPA included two options to regulate CCRs, which were immediately controversial. In

the wake of EPA’s proposal, the House passed two CCR bills that embodied a new approach to

creating state programs to regulate a solid waste under RCRA. Similar legislation was introduced

in the Senate, but the chamber took no action. The 113th Congress may consider legislation

patterned after the bills considered in the 112th Congress.

This report identifies key elements of that new approach and compares it to existing RCRA solid

waste management programs. The report concludes that there are significant differences between

the two. Under the new approach, EPA would have no formal role in creating state programs to

regulate CCRs (though an informal one may evolve). Further, in contrast to existing RCRA

programs, EPA would not be directed to establish regulations applicable to disposal facilities or to

approve of state programs to implement those regulations. Instead, states that opt to implement a

CCR Permit Program would be expected to establish regulations applicable to “CCR structures”

based on program specifications included in the bills. In contrast to existing state waste

management programs created under RCRA, such an approach would

•

Allow individual states to define key terms (e.g., “CCR structures”). Hence,

program applicability could vary from state to state, depending on how each state

defines those terms. For example, a “CCR landfill” could be defined to include

only land disposal units that receive CCRs or may include large-scale fill

operations at construction sites (a common use of CCRs that may pose risks

similar to landfilling).

•

Establish no explicit deadlines for the issuance of permits or for facility

compliance with applicable regulations, allowing individual states to establish

such deadlines—although a court might impose deadlines if it determines a state

has unreasonably delayed.

•

Require EPA to identify any deficiencies in a state’s CCR Permit Program.

However, it cannot be predicted what program elements EPA would regard as a

“deficiency,” or when EPA would make such an evaluation.

•

Require EPA to implement a CCR Permit Program for any state that chooses not

to do so or fails to remedy a program deficiency identified by EPA.

State regulations adopted under RCRA (e.g., municipal solid waste landfill regulations) have been

required by Congress to be those necessary to meet a national “standard of protection” (e.g.,

Congressional Research Service

Analysis of Recent Proposals to Amend RCRA

“protect human health and the environment”). In contrast, state regulations applicable to CCR

structures that would be applied by a CCR Permit Program created under this new approach

would not explicitly be required to do so. Each state arguably could apply its own standard of

protection. The absence of an explicit statement in the bills has implications for how EPA might

exercise its authority in the event of absent or deficient state action.

Given the potential for similar legislation to be proposed in the 113th Congress, and as a result of

the complexities inherent in creating a regulatory program using a new legislative approach (that

specifies new roles for states and EPA), this report provides additional background information

and expands on an earlier CRS analysis.

Congressional Research Service

Analysis of Recent Proposals to Amend RCRA

Contents

Introduction...................................................................................................................................... 1

Background ...................................................................................................................................... 3

Using Permit Programs to Implement and Enforce Regulations ............................................... 3

Permit Programs Created Under RCRA.............................................................................. 4

A New Approach to Creating a Permit Program ................................................................. 6

Administrative and Legislative Proposals to Regulate CCRs ................................................... 9

EPA Proposals to Regulate the Disposal of CCRs ............................................................ 10

Overview of Proposals to Amend RCRA .......................................................................... 14

Existing Standards Relevant to a CCR Permit Program ................................................................ 17

The Federal-State Program to Regulate MSW Landfills ......................................................... 17

The MSW Landfill Criteria ............................................................................................... 19

State Programs to Implement the MSW Landfill Criteria ................................................. 20

Proposed EPA Standards to Address Risks Specific to CCR Management ............................. 22

Proposed CCR Legislation Amending RCRA ............................................................................... 28

Provisions Relevant to Potential State CCR Permit Programs ................................................ 29

EPA’s Potential Role in Program Oversight and Implementation ........................................... 32

A “CCR Permit Program” Compared to State Programs to Regulate MSW Landfills .................. 35

Flexibility ................................................................................................................................ 36

Standard of Protection ............................................................................................................. 38

EPA’s Role ............................................................................................................................... 41

Conclusion ..................................................................................................................................... 43

Tables

Table 1. Selected Elements of CCR Regulations Proposed by EPA .............................................. 13

Table 2. EPA’s Role in State Permit Program Development and Implementation ......................... 41

Table A-1. RCRA Authorities and Directives Relevant to CCR Management .............................. 47

Table A-2. Standards for MSW Landfills and CCR Disposal Units .............................................. 54

Table A-3. EPA’s Proposed Design Criteria for Existing Surface Impoundments ......................... 61

Table B-1. Comparison of State Programs to Regulate MSW Landfills and CCR

Structures .................................................................................................................................... 64

Table C-1. Legislative and Administration Action Relevant to CCR Management ...................... 76

Appendixes

Appendix A. Selected Authorities and Directives in RCRA Relevant to CCR Management ........ 46

Appendix B. Requirements in 40 C.F.R. Part 239 and Comparable Program Elements in

the Amendment to RCRA Proposed in the 112th Congress......................................................... 63

Appendix C. RCRA Provisions and EPA Responses Related to Directives in the “Bevill

Amendment” ............................................................................................................................... 75

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Analysis of Recent Proposals to Amend RCRA

Contacts

Author Contact Information........................................................................................................... 81

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Analysis of Recent Proposals to Amend RCRA

Introduction

On October 14, 2011, the House passed the Coal Residuals Reuse and Management Act (H.R.

2273). On August 2, 2012, the Coal Ash Recycling and Oversight Act of 2012 (S. 3512) was

introduced in the Senate.1 Each bill would have amended the Solid Waste Disposal Act—more

commonly referred to as the Resource Conservation and Recovery Act of 1976 (RCRA; 42

U.S.C. §6901 et seq.). The House subsequently incorporated the provisions of the Senate bill in

Title IV of H.R. 3409, the Stop the War on Coal Act, passed in the House on September 12, 2012.

The bills would have created a framework that states could use to create permit programs for the

“management and disposal”2 of coal combustion residuals (CCRs, also referred to generally as

“coal ash”). In states that did not create a program that met program specifications included in the

proposed amendment, or in other specified circumstances, the Environmental Protection Agency

(EPA) would have been required to implement a program.

Each bill would have added to Subtitle D of RCRA a new Section 4011, Management and

Disposal of Coal Combustion Residuals. Compared to H.R. 2273, the Senate-introduced bill (S.

3512 and Title IV of H.R. 3409) included more detailed provisions applicable to the program.

However, the approach to creating state permit programs was largely the same in each bill. That

approach is unique within RCRA. As a result, state permit programs implementing regulations

applicable to CCR disposal, created in accordance with statutory permit program specifications,

would differ from other permit programs created in RCRA.

Legislation addressing CCRs may be considered in the 113th Congress. Analysis of selected

elements of the legislation considered during the 112th Congress is provided in this report as

background for future legislation that may take a similar approach. That approach, proposed in

the 112th Congress, was to create state programs to regulate a particular type of waste (CCRs)

using as its framework existing federal-state programs to regulate municipal solid waste (MSW)

landfills. For that existing program, pursuant to directives in Subtitle D of RCRA, EPA

promulgated federal regulatory criteria applicable to owners and operators of MSW landfills;

states adopted those federal criteria and implemented them using a permit program; and EPA

approved each state permit program, based on EPA’s determination of whether each program was

adequate to ensure facility compliance with baseline federal regulatory criteria. Further, as

explicitly required by Congress, the federal criteria promulgated by EPA, applicable to MSW

landfills, were required to be those necessary to “protect human health and the environment.”3

The approach used in the 112th Congress bills would not have provided an explicit mandate that

EPA or the states promulgate regulations applicable to CCR disposal facilities. Instead, the

A bill with provisions that are largely identical to H.R. 2273 was introduced in the Senate (S. 1751) on October 20,

2011. This report refers to S. 3512, not S. 1751.

A program created pursuant to the proposed amendment to RCRA would be defined, in part, as one implemented by

or for a state to “regulate the management and disposal” of CCRs (see proposed Section 4011(k)(2)). In RCRA, the

term “solid waste management” is broadly defined as “the systematic administration of activities which provide for the

collection, source separation, storage, transportation, transfer, processing, treatment, and disposal of solid waste.” The

term “disposal” is defined, in part, as the discharge, deposit, dumping, or placing of any solid waste or hazardous waste

into or on any land or water so that the waste or any constituent in that waste may enter the environment or be emitted

into the air or discharged into any waters, including groundwaters (see definitions at RCRA Section 1004(3) and (28);

42 U.S.C. §§6903(3) and (28)). That is, disposal is one of several activities that may be referred to as waste

management.

42 U.S.C. §6949a(c)(1).

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Analysis of Recent Proposals to Amend RCRA

proposed Section 4011 would itself list Permit Program Specifications4 that individual states

would be required to apply to “CCR structures.”5 Using this approach to creating largely statebased programs, it is difficult to determine in advance how such statutory specifications may be

interpreted by each state.

The proposed amendment would also have provided no explicit authority for EPA to directly

enforce regulatory criteria applicable to CCR disposal units (short of EPA running a CCR Permit

Program for a state). Such authority provided to EPA in other parts of RCRA (and in some other

pollution control laws) has generally served as an incentive to states to adopt and implement

federal regulatory criteria. The absence of such authority makes it difficult to anticipate the

degree to which EPA may encourage states to adopt and implement a program to regulate CCRs

that would comply with the Permit Program Specifications and other relevant provisions in the

proposed Section 4011.

The bills considered in the 112th Congress were proposed in the wake of a June 2010 proposal by

EPA to regulate CCRs. This report provides background and selected information regarding that

EPA proposal, including EPA’s determination that CCRs should be regulated according to

national waste management standards, rather than standards determined by individual states—as

they are regulated currently. The report also describes selected elements of RCRA Subtitles C and

D, relevant to both EPA’s proposal to regulate CCRs and the legislative proposals to create state

programs to regulate CCRs.

This report looks primarily at how state programs to regulate CCRs may be developed and

implemented by a state according to directives in the bills proposed in the 112th Congress; it does

not attempt to identify detailed requirements that may be applied by a state regulatory program.

Accordingly, the report does not compare provisions in House and Senate bills proposed in the

112th Congress or provide detailed analysis of provisions in those bills, except to the extent that

individual provisions may be relevant to the regulatory program a state may develop and

implement to regulate CCRs.

Federal criteria applicable to MSW landfills were promulgated in 1991.6 State efforts to adopt the

federal criteria and implement them according to an EPA-approved permit program have been

largely complete for more than 15 years. In comparing the proposed approach to regulate CCRs

to the now-mature and already EPA-approved state programs to regulate MSW landfills, where

relevant, this report provides information regarding those existing programs as they have been

implemented (e.g., with regard to enforcement authorities that EPA could have exercised, but did

not). Also, to simplify the discussion in this report, potential programs to regulate CCRs are

discussed in the present tense (e.g., references to programs that “may be” or “could be” created

and implemented by states refer to programs that may or could have been created pursuant to bills

proposed in the 112th Congress).

Since the most recent bill passed by the House adopted provisions in the Senate bill, unless

otherwise noted, any reference to “the bills,” “the proposed amendment to RCRA,” or “Section

4011” refers to S. 3512/Title IV of H.R. 3409, proposed in the 112th Congress.7 Provisions

In proposed Section 4011(c).

Defined in proposed Section 4011(k).

40 C.F.R. Part 258.

To the extent that detail regarding the bills is discussed, provisions in the Senate-proposed bill will be cited. Since

(continued...)

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Analysis of Recent Proposals to Amend RCRA

included throughout the bills use the term “CCR permit program” to refer to state programs to

regulate CCRs. The proposed amendments to RCRA would not create a “permit program,” per se

(see discussion in “Provisions Relevant to Potential State CCR Permit Programs”). Instead,

selected provisions in the bills would form a framework that states could use to create programs

to regulate CCR management (i.e., its use or disposal). To distinguish between “permit programs”

as they have been previously created in RCRA and programs that could be created pursuant to the

approach taken in the proposed bills, use of the phrase “CCR Permit Program” will mean a

program that could be developed, adopted, or implemented by or for a state according to

provisions in proposed Section 4011. Further, since the bills were designed to result in a statebased regulatory program, discussion of CCR Permit Programs focuses primarily on the programs

that may be created by states, as opposed to a program to regulate CCRs that could potentially be

implemented by EPA for a state.8

Background

Using Permit Programs to Implement and Enforce Regulations

State solid waste management agencies commonly require owners and operators of certain waste

disposal facilities to obtain a permit as part of that state’s program to ensure that those facilities

will comply with applicable waste management requirements. Such permits are legally

enforceable documents detailing requirements applicable to the permittee (owners and operators

of a specifically regulated solid waste disposal facility) and conditions the permittee must meet to

demonstrate compliance with those requirements. Requirements applicable to solid waste

disposal facilities are generally promulgated by states pursuant to state laws applicable to solid

waste management. State regulations applicable to waste disposal facilities may vary depending

on the issues specific to the type of waste received at that facility. For example, requirements

applicable to a landfill that receives construction and demolition debris would be tailored to

address waste management issues that may be different from requirements applicable to a landfill

that accepts industrial solid waste.

A state permit “program” is the body of authorities, activities, and procedures that the permitting

authority uses to implement and enforce regulations applicable to a solid waste disposal facility.

Permit programs may include, among other elements, state laws that

•

specify the types of facilities required to obtain a permit;

•

provide a state agency with authority to implement the regulatory program

applicable to those facilities; and

•

authorize the permitting authority to conduct compliance inspections and to take

enforcement action necessary to remedy violations of program requirements.

(...continued)

there is no legislative history available for S. 3512 or Title IV of H.R. 3409, available legislative history for H.R. 2273

is cited, if it involves an issue involving a comparable provision in S. 3512.

For example, under specific conditions when EPA would have been required to implement a CCR Permit Program for

a state, as proposed in Section 4011(e), “Implementation by Administrator.”

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Analysis of Recent Proposals to Amend RCRA

Exactly how state solid waste management programs have been created varies from state to state.

Since all states currently have waste management laws in place, a new permit program may be

created by amending existing laws to specify the entity required to operate using a permit and

authorize the appropriate state agency to promulgate regulations applicable to the permittee. Once

the regulations are promulgated, the authorized state agency would generally be required to take

measures necessary to ensure that the newly regulated waste disposal facility operates in

compliance with applicable requirements. The permit would specify those compliance

requirements (e.g., daily operating procedures, facility design requirements), as well as

documentation that must be maintained to prove facility compliance (e.g., inspections records,

groundwater monitoring data).

Permit Programs Created Under RCRA

Under Subtitle C of RCRA, EPA has primary authority to regulate hazardous wastes from the

time it is generated until its ultimate disposal.9 Under RCRA Subtitle D, however, states have

primary authority to regulate nonhazardous solid wastes. EPA’s role in the regulation of solid

waste under Subtitle D has largely been to promulgate criteria applicable to sanitary landfills as

necessary to identify and eliminate open dumps, prohibited under RCRA.10 Amendments to

RCRA in 1984 required EPA to revise the sanitary landfill criteria to apply to facilities that may

receive hazardous household wastes.11 EPA subsequently defined these facilities in regulation as

municipal solid waste, or MSW, landfills.

The creation of state programs to regulate MSW landfills involved two different but related

elements—the promulgation of federal regulatory criteria applicable to owners and operators of

MSW landfills (at 49 C.F.R. Part 258); and a requirement that EPA approve state permit programs

implementing the federal criteria. In RCRA, directives from Congress to EPA to promulgate

regulations have included a broad directive that those regulations must meet a minimum

“standard of protection.” The standard of protection has been “to protect human health and the

environment.”12 Permit programs created under RCRA, adopted and implemented by a state, have

been expected to ensure that waste disposal facilities, operating in compliance with the federal

regulatory criteria, will not pose a risk to human health.13

Pursuant to “Requirements for Authorization of State Hazardous Waste Programs,” at 40 C.F.R. Part 271

(promulgated by EPA pursuant to authorities in RCRA Section 3006; 42 U.S.C. §6926), EPA has authorized most

states to implement a basic Subtitle C program—that is, a program that meets relevant statutory and regulatory

requirements established under RCRA Subtitle C. For information about how states become authorized to implement

the federal hazardous waste program, see EPA’s “RCRA State Authorization” web page at http://www.epa.gov/osw/

laws-regs/state/index.htm.

42 U.S.C. §6945(a).

42 U.S.C. §6949a(c)(1).

In this report, the phrase “standard of protection” is used in its generally accepted sense to mean the performance

standards to be achieved by compliance with regulations. See, for example, the directive to EPA, included in RCRA

Subtitle C, pertaining to “Standards applicable to owners and operators of hazardous waste treatment, storage, and

disposal facilities,” at 42 U.S.C. §6924; and the directive to EPA with regard to the “Adequacy of certain guidelines

and criteria: Revisions of guidelines and criteria,” at 42 U.S.C. §6949a(c).

In the context of regulating solid waste facilities in RCRA, the goal of protecting human health and the environment

is focused primarily on human health. Reference to “protection of human health” throughout this report is used in the

same manner as adopted by EPA in its documents, to indicate protection of human health and the environment.

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Analysis of Recent Proposals to Amend RCRA

When states began to implement the federal MSW landfill criteria, states had a certain degree of

flexibility in adopting the regulations according to state-specific conditions. However, EPA

approval of a state permit program to implement the MSW landfill criteria was dependent on

whether EPA determined that the state’s program was “adequate” to ensure MSW landfill

compliance with regulations that met the baseline federal standard of protection.14 The ultimate

objective of the regulatory program was the same nationwide (i.e., to achieve a baseline standard

of protection), but details regarding how each state may achieve that objective varied from state

to state.15

Under the Constitution, Congress has no power to compel states to exercise their sovereign

authority.16 Thus, pursuant to pollution control laws administered by EPA (or any other laws),

Congress may not require states to adopt federal regulations or require states to implement certain

requirements using a permit program.17 However, Congress has authorized EPA to promulgate

and enforce certain regulations, while simultaneously providing for conditions under which a

state may be authorized or approved to adopt and enforce those regulations. Given the options of

allowing EPA to enforce a federal standard at facilities in the state or adopting and enforcing the

regulations themselves, states generally choose the latter.

To provide states with an incentive to adopt the federal criteria and implement them using a

permit program, Subtitle D included provisions that specified narrow conditions under which EPA

could directly enforce the federal regulatory criteria.18 More specifically, EPA was authorized to

enforce the federal standards from 18 months after the MSW landfill criteria were finalized to the

point at which a state adopted a program approved by EPA as adequate to enforce the federal

criteria. For this purpose, EPA was explicitly authorized to use its inspection and federal

enforcement authorities under Subtitle C, Sections 3006 and 3007.19 (EPA and state authorities to

enforce the open dumping prohibition, as well as other Subtitle D authorities, provisions, and

resulting regulations established under Subtitle D, are discussed in “The Federal-State Program to

Regulate MSW Landfills” and in Appendix A.)

EPA promulgated the MSW landfill criteria in October 1991, but did not promulgate requirements

that delineated elements of an “adequate” permit program until October 1998 (at 40 C.F.R. Part

239). Over that period EPA worked with states to develop programs that could be deemed

“adequate” pursuant to RCRA. EPA could have directly enforced the MSW landfill criteria at any

EPA was required to determine the adequacy of a state permit program pursuant to RCRA Section 4005(c)(1)(C); 42

U.S.C. §6945(c)(1)(C). The basis of EPA’s adequacy determination is specified at RCRA Section 4005(c)(1)(B); 42

U.S.C. §6945(c)(1)(B).

For example, risks associated with precipitation run-on/runoff across a disposal site may be different in desert

regions or where the water table is not close to the land surface, compared to a state with higher rates of precipitation

and a water table close to the surface, near the disposal site.

New York v. United States, 505 U.S. 144 (1992); Printz v. United States, 521 U.S. 898 (1997); for legal analysis,

contact the Congressional Research Service, American Law Division, at 7-.....

The term “require” is used in this report because the term is commonly used to describe state obligations under

federal environmental statutes. Nonetheless, the constitutional inability of the federal government to compel state

exercises of their sovereignty should be understood. See CRS Report RL34384, Federal Pollution Control Laws: How

Are They Enforced?, by (name redacted), and CRS Report RL30798, Environmental Laws: Summaries of Major

Statutes Administered by the Environmental Protection Agency, coordinated by (name redacted).

At 40 C.F.R. §258.1, the MSW landfill criteria are referred to as minimum national criteria to ensure the protection

of human health and the environment.

As allowed at 42 U.S.C. §6945(c)(2).

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Analysis of Recent Proposals to Amend RCRA

point after April 1993 in any state that did not yet have an EPA-approved program in place. EPA

never stepped in to directly enforce the federal criteria, however.

All states now have programs determined by EPA to be adequate to implement the MSW landfill

criteria. As a result, EPA authority to directly enforce the criteria may not currently be invoked by

the agency since that authority is limited to states found by EPA to have an inadequate program to

implement the MSW program.

Under Subtitle C, EPA has primary authority to implement and enforce the federal requirements

applicable to hazardous waste treatment, storage, and disposal facilities (TSDFs). In lieu of the

federal program, states can be authorized by EPA to implement regulations applicable to those

facilities, including permitting those facilities.20 Most states have requested and received such

authorization. While under certain conditions, EPA could rescind state authority to implement a

previously authorized state hazardous waste management program, EPA has never done so.

However, as authorized under Subtitle C, EPA has taken enforcement actions against individual

TSDFs in states authorized to implement federal Subtitle C requirements.

In contrast to such programs where EPA has primary oversight and enforcement authority, EPA’s

authority to directly enforce the MSW landfill criteria was framed narrowly. Now that all states

have approved permit programs to implement the MSW landfill criteria, EPA has no effective

authority to step in and enforce federal regulatory criteria at an individual MSW landfill. EPA’s

only available method to directly enforce the federal landfill criteria (arguably) would be to first

rescind its earlier approval of a state Subtitle D program, which the agency has never done.

A New Approach to Creating a Permit Program

CCR Permit Programs established pursuant to bills proposed in the 112th Congress would use as

their framework the existing program created under Subtitle D to regulate MSW landfills. The

available legislative history accompanying the bills indicates that CCR Permit Programs are

intended to be similar to existing state programs to regulate MSW landfills.21

In comparing these permit programs, several differences can be identified. A unique element of

the proposed amendment to RCRA would be the creation of a permit program absent a directive

to EPA to promulgate standards applicable to the entity potentially regulated pursuant to the

program. That is, the proposed bills include no explicit directive (to states or to EPA) to

promulgate regulatory criteria or standards that would apply directly to owners and operators of

disposal facilities that receive CCRs. Instead, minimum program requirements22 specify that the

CCR Permit Program “shall apply” selected MSW landfill criteria to owners and operators of

structures. According to that precondition, it is arguably implied that states that choose to adopt

and implement a permit program would promulgate regulations applicable to “CCR structures.” 23

Under Subtitle C (in 42 U.S.C. §6926) a state may request from EPA authority to implement its own program, in lieu

of the federal program, to regulate owners and operators of treatment, storage, and disposal facilities that receive

hazardous waste and to issue and enforce permits for those facilities. See CRS Report RL34384, Federal Pollution

Control Laws: How Are They Enforced?, by (name redacted). Also, for information about the process that states must

complete to become authorized to implement federal programs established under RCRA Subtitle C, see EPA’s “RCRA

State Authorization” web page at http://www.epa.gov/osw/laws-regs/state/index.htm.

See statements included in the “Purpose and Summary” section of H.Rept. 112-226.

At proposed Section 4011(c)(1)(A).

Defined in proposed Section 4011(k)(6) as a landfill, surface impoundment, or other land-based unit that may receive

(continued...)

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Analysis of Recent Proposals to Amend RCRA

Regulations that would ultimately apply to owners and operators of CCR structures would depend

on each state’s interpretation of the criteria listed among the proposed Permit Program

Specifications.

Although the purpose of the proposed amendment to RCRA was the creation of state permit

programs to implement regulations applicable to CCR disposal, apart from using MSW landfill

criteria and selected other minimum requirements that must be applied by the CCR Permit

Program, there were few requirements applicable to the permit program itself. (For comparison,

requirements used by EPA to determine whether state programs were adequate to enforce the

MSW landfill criteria, included under 40 C.F.R. Part 239, and explicitly required elements of a

CCR Permit Program, are listed in Appendix B.)

Under this structure, statutory provisions listed in the proposed Permit Program Specifications

would serve as both the framework states may use to create regulations applicable to the entity

required to obtain a permit, and any required elements of the permit program itself. Compared to

other programs created under federal pollution control laws, this is an approach—possibly

complex in practice—to creating a regulatory program that does not clearly distinguish the

purpose of federal regulations that meet a minimum standard of protection from permit programs

used to implement and enforce those regulations.

Creation of a state program to regulate a particular type of waste, according to statutory

provisions in federal law, without detailed federal regulations or guidance, would be a novel

approach in RCRA. That a RCRA program has never been authorized or established by Congress

using such an approach does not mean that this new approach would not meet a particular

objective. The proposed bills, however, did not include a specific statement of the objective of a

CCR Permit Program—with the exception of the broad statement in the bill’s preamble that it is

to “facilitate recovery and beneficial use and provide for the proper management and disposal” of

CCRs.

This report compares state programs to regulate CCR disposal, created pursuant to program

specifications included in the proposed amendment to RCRA, to existing federal-state programs

to regulate MSW landfills. Since the proposed program to regulate CCRs was intended to be

state-implemented, this report focuses primarily on elements of a regulatory program that may be

created, adopted, and implemented by a state according to program specifications included in the

proposed amendment. In comparing that proposed program to the existing program to regulate

MSW landfills, there are various ways the programs could differ—with regard to implementation

and enforcement. The report compares three program elements: (1) the flexibility provided to

states in implementing the proposed Permit Program Specifications; (2) the standard of protection

state regulations may provide; and (3) EPA’s potential role in program implementation. This

report explains existing federal-state programs to regulate MSW landfills, as well as risks EPA

has identified as specific to the management of CCRs.

With regard to potential state regulations applicable to CCR structures, as noted above, a CCR

Permit Program created pursuant to the proposed bills would be required to apply several

minimum requirements and selected MSW landfill criteria to CCR structures. A state may

(...continued)

CCRs.

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Analysis of Recent Proposals to Amend RCRA

promulgate regulations according to its interpretation of those statutory provisions and how those

criteria cited should be applied to CCR structures in the state.

In federal pollution control laws, ambiguities are subject to EPA (and potentially court)

interpretation. In contrast, any ambiguities or requirements not specified in the proposed CCR

bills would be subject to state (and potentially court) interpretation. For example, criteria that

must be applied to CCR structures using a CCR Permit Program include selected MSW landfill

criteria—primarily the technical criteria such as operational and design criteria and groundwater

monitoring requirements. However, program specifications do not include criteria comparable to

“general” standards in the MSW landfill criteria.24 Those general standards define “applicability”

(to whom the regulations apply), specify deadlines for facility compliance, and clarify

requirements applicable to existing versus new facilities, among other elements. Since those

standards are necessary to implement a program, states would likely include them in their own

CCR Permit Program. State inclusion of those criteria would likely vary from state to state.

Decisions regarding the applicability of state regulations and compliance deadlines that existing

facilities would be required to meet would be particularly relevant in determining the degree to

which a state program may protect human health from risks specific to CCR disposal. In listing

Permit Program Specifications, however, the bills did not explicitly require a CCR Permit

Program to apply criteria to CCR structures that would be intended to achieve a specific standard

of protection. If promulgated in accordance with existing state solid waste management laws,

regulations applicable to CCR structures may meet standards of protection determined by each

state, in accordance with that state’s interpretation of potential risk to human health from CCR

disposal. Such an approach to regulating a waste differs from existing state programs to regulate

MSW landfills—programs adopted and implemented by each state to assure that each regulated

MSW landfill will comply with regulations designed to meet a baseline level of protection.25

EPA’s oversight role in state implementation of a CCR Permit Program, pursuant to the approach

in the proposed bills, would be substantially different from EPA’s typical role in the oversight of

permit programs created in federal pollution control law. Pursuant to the bills, in a state that

chooses to implement a CCR Permit Program, EPA would be required to provide notice to a state

regarding “deficiencies” in its program, with regard to certain program elements. For example,

EPA would be required to notify and provide states with an opportunity to remedy deficiencies if,

at any time, EPA determines the state is not implementing a CCR Permit Program that meets

Permit Program Specifications delineated in the bills.26 Since those specifications do not include

an explicit deadline for fully implementing the program (e.g., issuing permits and assuring facility

compliance with applicable regulations), it cannot, as a practical matter, be determined in advance

when EPA might evaluate state programs for deficiencies.27 However, once a state began

implementing a CCR Permit Program, EPA could review that state’s program at any time; could

potentially find certain program elements deficient; and, within a narrow range of conditions

specified in the bills, would then be required to implement a CCR Permit Program.

See 40 C.F.R. Part 258, Subpart A, also see Table A-2 in Appendix A.

See 42 U.S.C. §§6945(c)(1)(B) and 6949a(c)(1).

See proposed Section 4011(d)(1)(D)(i) and 4011(d)(3)(A)(iv).

Although the bills would include no explicit deadline for compliance with most requirements potentially applicable

to CCR structures or for states to begin issuing permits, EPA and the courts have legal basis to impose reasonableness

bounds on state discretion as to deadlines. For more information, contact the Congressional Research Service,

American Law Division, at 7-.....

Congressional Research Service

Analysis of Recent Proposals to Amend RCRA

The bills’ requirement that EPA identify certain state program elements that may be “deficient”

involves the use of a term not found in the RCRA statute, and thus lacking a history of

interpretation. As a result, it is difficult to anticipate how EPA would respond to such a mandate.

In contrast, with regard to existing state programs to regulate MSW landfills, Congress required

EPA to determine whether each state program was “adequate.”28 EPA subsequently interpreted

that mandate to mean that it was required to determine whether each state program was adequate

to ensure that regulated facilities would operate in compliance with regulatory criteria that met a

baseline level of protection.29 Unlike “deficient,” the term “adequate” now has decades of agency

interpretation providing a mature understanding of its precise meaning for evaluating state

programs.

Some have argued that by requiring EPA to implement a CCR Permit Program for a state under

specific conditions, the bills would provide EPA with authority to backstop state programs. Under

current law, the term “backstop authority” is not formally defined in statute or regulation, and

whether EPA is said to have backstop authority or not has no legal consequence. Nonetheless, the

term has been widely used to refer to explicit authority provided to EPA to enforce standards at

individual facilities in a state authorized by EPA to implement and enforce federal standards.

Reference to EPA backstop authority has been made with regard to RCRA, the Clean Air Act, and

the Clean Water Act. For example, under RCRA Subtitle C (42 U.S.C. §6928(a)), EPA is

authorized to enforce standards of performance at individual facilities in a state even after the

agency has authorized the state to implement and enforce such standards. Section 111(c) of the

Clean Air Act (42 U.S.C. §7411(c)) provides EPA with comparable enforcement authority. In this

sense of the term, the bills would not provide EPA with authority to backstop state programs to

regulate CCR facilities.

Administrative and Legislative Proposals to Regulate CCRs

Despite its recent decline in demand, coal remains the dominant fuel for electricity generation in

the United States, and is expected to continue to be well into the future.30 In 2011, electricity

generating units in the United States burned more than 900 million tons of coal. CCRs are the

inorganic material remaining after pulverized coal is burned at electric utilities and independent

power producers.31 According to industry estimates, in 2011, as much as 130 million tons were

generated, making CCRs one of the largest waste streams in the United States.32

42 U.S.C. §6945(c)(1)(C).

See “Requirements for State Permit Program Determination of Adequacy,” at 40 C.F.R. Part 239, particularly

information included in the sections regarding “Purpose” (§239.1), “Scope and definitions” (§239.2), and “Components

of a program application” (§239.3).

According to the Department of Energy’s Energy Information Administration (EIA), coal accounted for 42% of total

U.S. energy generation in 2011, compared to 45% in 2010. In 2020 and 2035, EIA projects that its share will be 39%

and 38%, respectively. For more information, see EIA’s “Annual Energy Outlook 2012: with Projections to 2035,”

June 2012, p. 87, available at http://www.eia.gov/forecasts/aeo/pdf/0383%282012%29.pdf; or CRS Report R42950,

Prospects for Coal in Electric Power and Industry, by (name redacted), (name redacted), and (name redacted).

The substance is also commonly referred to as coal combustion waste, product, or byproduct; it may also be referred

to as fossil fuel combustion waste (FFC waste). How it is referred to depends on the context in which it is being

discussed. For example, coal combustion wastes or residuals are materials destined for disposal, while coal combustion

products or byproducts are destined for some use such as a component in gypsum wallboard or cement. Regardless of

what it is called, these terms refer to the same material—coal ash (when referred to broadly) or fly ash, bottom ash,

boiler slag, and flue gas desulfurization materials (when referred to with specific regard to its origin in a coal-fired

power plant). This report generally refers to the substance as coal combustion residuals (CCRs) since that term is used

(continued...)

Congressional Research Service

Analysis of Recent Proposals to Amend RCRA

Disposal of CCRs on site at individual power plants may involve decades-long accumulation of

waste—with hundreds of thousands, if not millions, of tons of dry ash (in a landfill) or wet ash

slurry (in a surface impoundment) deposited at the site. On December 22, 2008, national attention

was turned to risks associated with managing such large volumes of CCRs when a breach in a

surface impoundment pond at the Tennessee Valley Authority’s (TVA’s) Kingston, TN, plant

released 1.1 billion gallons of coal fly ash slurry, covering more than 300 acres, damaging or

destroying homes and property. TVA estimates that cleanup will continue into at least 2014 and

will cost $1.2 billion.33

The incident at Kingston drew attention to the potential for a sudden, catastrophic release related

to the structural failure of a surface impoundment. However, EPA has determined that a more

common threat associated with CCR management is the leaching of contaminants likely present

in the waste, primarily heavy metals, resulting in surface or groundwater contamination. The

Kingston release also brought attention to the fact that the management of CCRs is essentially

unregulated at the federal level.

EPA found that many state solid waste management programs adequately regulate CCR landfills,

but identified gaps in those programs with respect to the regulation of CCR surface

impoundments (particularly existing surface impoundments). EPA determined that national

standards applicable to the management of CCRs destined for disposal are needed. In June 2010,

EPA proposed two options to regulate CCRs pursuant to its current authorities under RCRA

Subtitles C and D.34 In reaction to concern over the potential impacts of implementing either EPA

regulatory option, the proposals to amend RCRA were introduced in the 112th Congress.

EPA Proposals to Regulate the Disposal of CCRs

According to industry estimates, almost 80% of CCRs generated in 2011 was managed in a way

that involved land application of the material. Such management practices included CCR disposal

in landfills, surface impoundments, or mines (as minefill);35 and use as structural and

embankment fill and as a soil amendment, among others.36 EPA has identified a number of

conditions under which such land applications of CCRs may pose a threat to human health.

(...continued)

in the administrative and legislative proposals discussed in this report. As used by EPA, CCRs are materials destined

for disposal. Under the legislative proposals, the term refers broadly to the residuals, but not their destination (e.g.,

disposal or recycling).

See American Coal Ash Association (ACAA) survey data, “2011 Coal Combustion Product (CCP) Production & Use

Survey Report,” at http://acaa.affiniscape.com/associations/8003/files/2010_CCP_Survey_FINAL_102011.pdf.

Tennessee Valley Authority, “Form 10-Q: Quarterly Report,” filed with the United States Securities and Exchange

Commission on May 4, 2012, for the period ending March 31, 2012, p. 19.

U.S. EPA, “Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal

of Coal Combustion Residuals From Electric Utilities,” 75 Federal Register 35128-35264, June 21, 2010.

EPA explicitly excluded CCR placement in mines as minefill in its June 2010 proposals to regulate CCRs. Its use as

minefill would be subject to regulation by the Department of the Interior’s Office of Surface Mining Reclamation and

Enforcement (OSM), not EPA. For information, see OSM’s Advance Notice of Proposed Rulemaking, “Placement of

Coal Combustion Byproducts in Active and Abandoned Coal Mines,” March 14, 2007, 72 Federal Register 12026.

Various uses of CCRs, including those not likely to involve land application (e.g., its use as a component in products

like wallboard and cement), are listed in the ACAA survey data referred to in footnote 32.

Congressional Research Service

Analysis of Recent Proposals to Amend RCRA

EPA also identified certain protective measures that may be implemented that would minimize or

largely eliminate risks from CCR disposal. Many of the measures reduce risks that may be

broadly applicable to the operation or design of other types of waste disposal facilities, such as

MSW landfills. However, EPA identified other protective measures that would address risks

specific to the management of CCRs. In particular, EPA found that surface impoundments pose a

significant risk of contaminant leaching when CCRs are placed in an unlined unit, but that risk

can be largely eliminated through the use of a composite liner system. Surface impoundments

also pose a risk of structural failure. Given the potentially large volume of liquid waste

impoundments may contain, structural failure could result in a catastrophic release of coal ash

slurry. The potential for structural failure could be minimized by various means, including

ensuring that the units meet certain design standards and are inspected regularly.

CCR disposal facilities are currently subject to limited federal regulation. Instead, they are

regulated by individual states.37 In a continuing effort to determine whether CCRs should be

subject to federal requirements established under RCRA, EPA has gathered data on CCR use and

disposal for more than 30 years. In the past 10 years, EPA has found that states appear to be

regulating CCR landfills to a greater extent than they had in the past. However, based on

available data, EPA determined that a majority of states with CCR surface impoundments did not

appear to require facility owner/operators to implement protective measures typically deemed

necessary to protect human health from risks associated with contaminant migration. As a result

of potential risks tied to CCR management, documented cases of damages attributed to improper

disposal practices, and concern over potential gaps in state regulatory programs to regulate CCRs,

particularly surface impoundments, EPA determined that national standards were needed to

protect human health from risks specific to CCR management (i.e., its disposal and certain uses).

EPA options to regulate CCRs, however, are limited under its current authorities in Subtitles C

and D. Pursuant to the Bevill exclusion,38 CCRs are explicitly excluded from the Subtitle C

requirements, unless or until EPA determines that such requirements are warranted (EPA efforts

with regard to directives included in the Bevill Amendment are summarized in Appendix C).

Accordingly, EPA has two options: (1) it could determine, reversing previous rulings, that

hazardous waste regulation is warranted for CCRs, and promulgate regulations under Subtitle C,

or (2) it could promulgate standards applicable to CCR landfills and surface impoundments under

its Subtitle D authority (as necessary to allow states to enforce the prohibition on open dumping

under RCRA Subtitle D).

On June 21, 2010, EPA proposed for public comment two options to regulate CCRs pursuant to

those Subtitle C and D authorities.39 Under the Subtitle C option, EPA would reverse a previous

The fact that a state does not regulate surface impoundments or landfills according to federal solid waste

management regulations does not mean that those units are not regulated under other federal programs implemented by

authorized states—such as the regulation of surface impoundments according to federal requirements established under

the Clean Water Act (33 U.S.C. §1251 et seq.).

The exclusion of CCRs from Subtitle C requirements was established under RCRA pursuant to provisions in the

1980 Solid Waste Disposal Act Amendments, referred to commonly as the Bevill Amendment or the Bevill Exclusion

(primarily at RCRA Section 3001(b)(3)(A); 42 U.S.C. §6921(b)(3)(A)). Since 1980, EPA analysis of risks specific to

the disposal and use of CCRs has been conducted according to the directive included in Bevill Amendment provisions.

Information about Bevill Amendment provisions, EPA study criteria established in statute, and EPA actions in response

to directives in the Bevill Amendment is provided in Appendix C. Included among EPA actions were determinations

to leave the Bevill exclusion in place, most recently in May 2000.

For information about EPA’s June 2010 proposal, see CRS Report R41341, EPA’s Proposal to Regulate Coal

Combustion Waste Disposal: Issues for Congress, by (name redacted).

Congressional Research Service

Analysis of Recent Proposals to Amend RCRA

regulatory determination to exempt CCRs from the hazardous waste requirements and, instead,

list the material as a “special waste.” Subtitle C requirements applicable to CCR management

would include strict standards applicable to CCR land disposal. EPA assumed that power plants

that dispose of CCRs on-site would continue to do so, but would upgrade their facilities as

necessary to ensure compliance with land disposal standards applicable to owners and operators

of TSDFs—standards that EPA tailored to address issues specific to CCRs. Pursuant to its

existing authorities under Subtitle D, EPA’s second regulatory option would be to promulgate

national standards applicable to landfills and surface impoundments that receive CCRs. The

proposed standards are structured similarly to regulatory requirements applicable to MSW

landfills, supplemented to reflect requirements specific to the management of CCRs (discussed in

“Proposed EPA Standards to Address Risks Specific to CCR Management”).

According to EPA, if implemented as proposed, each regulatory option would result in a similar

level of protection. However, each option would result in regulatory programs with a substantially

different scope and potential for enforcement. Adoption and enforcement of the Subtitle C “cradle

to grave” regulations would involve stricter waste management standards implemented at a higher

cost to both industry and state waste management agencies. Implementing the Subtitle D option

would establish standards applicable only to owners and operators of CCR landfills and surface

impoundments (i.e., it would create a regulatory program applicable only to the CCR “grave,” not

every stage of CCR management). In contrast to its broad authority to enforce Subtitle C

requirements, EPA could promulgate the Subtitle D standards, but would have limited authority to

enforce them. If finalized, EPA could encourage states to adopt and enforce the Subtitle D

standards, but would have no authority to enforce the standards directly.40

Selected elements of EPA’s proposed Subtitle C and D requirements, applicable specifically to

waste disposal units that may receive CCRs, are summarized in Table 1.

Under Subtitle D, EPA was required to promulgate regulations necessary to assist states in distinguishing between

open dumps (prohibited under RCRA) and sanitary landfills. EPA is not, however, authorized to directly enforce those

federal criteria. EPA and state authorities to enforce the open dumping prohibition, as well as other Subtitle D

authorities, provisions, and resulting regulations established under Subtitle D, are discussed in “The Federal-State

Program to Regulate MSW Landfills” and in Appendix A.)

Congressional Research Service

Analysis of Recent Proposals to Amend RCRA

Table 1. Selected Elements of CCR Regulations Proposed by EPA

Requirements Relevant to Waste Disposal Facilities

Regulation

Under the Subtitle C Option

Under the Subtitle D Option

Federal

regulatory

standards

Existing “Standards Applicable to Owners

and Operators of Hazardous Waste

Treatment, Storage, and Disposal

Facilities” (TSDFs) would be amended to

add “Special Requirements for Coal

Combustion Residual Wastes.”

Existing “Criteria for Classification of Solid

Waste Disposal Facilities and Practices” (at

40 C.F.R. Part 257) would be amended to

add “Standards for the Receipt of Coal

Combustion Residuals in Landfills and

Surface Impoundments, applicable to

owners and operators of those units.”

Permits

requirements

Owners and operators of TSDFs that

receive CCRs would be required to

obtain a permit.

Not required.

Implementation

and

enforcement

In a state authorized by EPA to administer

its own hazardous waste programs, the

state would implement the new

requirements. The new regulations would

become enforceable once that state

adopts the regulations, modifies its

programs, and receives authorization

from EPA.

The standards were written to be selfimplemented by facility owner/operators.

They would be enforced primarily pursuant

to RCRA’s citizen suit authority. States may

adopt and implement the standards, but

would not be required to do so. States

could also enforce the federal standards at

individual facilities, using citizen suit

authority.

Source: Congressional Research Service, based on a review of EPA’s “Hazardous and Solid Waste Management

System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals From Electric

Utilities,” 75 Federal Register 35128, June 21, 2010—particularly, EPA’s summary of selected elements of the

regulatory options proposed under RCRA Subtitles C and D on pp. 35133-35134 and 35159.

EPA’s proposal drew comments from industry groups, environmental and citizen groups, state

agency representatives, individual citizens, and some Members of Congress. Although public

comments varied, opposition to the Subtitle C option was largely due to concerns that it would be

costly to implement to both states and industry; be too restrictive; stigmatize the material by

labeling it “hazardous,” adversely affecting its potential for reuse; and restrict uses of the material

that involve land-based applications of CCRs, due to the land disposal restrictions applicable to

hazardous wastes.

Opposition to the Subtitle D option stemmed from various concerns, many of which were

centered on EPA’s lack of authority to directly enforce the standards—authority that would likely

be necessary to encourage states to adopt and enforce them. Given the argument by many states

that the material is being managed sufficiently under current state regulatory programs,

environmental and citizen groups have expressed doubts over the degree to which states would

adopt new standards, resulting in the promulgation but not the implementation of any new

requirements to ensure protection of human health.

This report provides information regarding EPA’s proposals to regulate CCRs only insofar as such

detail is helpful to clarify risks associated with CCR management. The report does not provide a

comprehensive discussion of EPA’s authority to regulate CCRs, why EPA determined that

national standards were necessary, details of EPA’s proposals, or opposition to them. That

information is provided separately in CRS Report R41341, EPA’s Proposal to Regulate Coal

Combustion Waste Disposal: Issues for Congress, by (name redacted).

Congressional Research Service

Analysis of Recent Proposals to Amend RCRA

Overview of Proposals to Amend RCRA

As noted, the approach to creating the permit program in the bills considered in the 112th

Congress differs from what is typical in federal pollution control laws administered by EPA. That

it would be created using a new approach does not mean that it cannot achieve its intended

purpose. Its purpose is broadly stated as “to facilitate recovery and beneficial use, and provide for

the proper management and disposal” of CCRs.41 In accordance with that purpose, it would

appear that CCR Permit Programs would be intended to result in the “proper management” of

CCRs, but not restrict beneficial uses of CCRs. The bills would establish a framework that states

could use to create programs to regulate CCR disposal, allow states flexibility to develop and

implement the program, and specify some level of EPA oversight after states are implementing

the program. Such a program would be comparable to existing state programs to implement and

enforce standards necessary to ensure facility compliance with RCRA’s open dumping

prohibition.42

Based on the construction of the proposed amendment (e.g., listing specific MSW landfill criteria

that CCR Permit Programs must apply) and statements available in the legislative history, it may

be assumed that state adoption and implementation of a CCR Permit Program, created pursuant to

the proposed bills, are intended to result in state programs to regulate CCR disposal similarly to

existing state programs to regulate MSW landfills. The creation of the latter involved a somewhat

complex evolution of RCRA.43 In particular, federal-state programs to regulate MSW landfills

were created pursuant to the 1984 amendments to RCRA Subtitle D that revised existing

requirements applicable to RCRA’s prohibition on open dumping.

Under Section 4011 in the proposed bills, states would create CCR Permit Programs using

statutory criteria drawn from regulatory criteria previously created pursuant to RCRA. However,

proposed Section 4011 includes no provisions that would explicitly require either EPA or states to

promulgate regulations directly applicable to owners and operators of disposal facilities that

receive CCRs (regulations the permit program would be expected to implement). Instead, the

Permit Program Specifications44 would cite selected existing federal regulatory criteria applicable

to MSW landfills (in 40 C.F.R. Part 258) and five requirements drawn from EPA’s June 2010

Subtitle D proposal that a CCR Permit Program would be required to apply.45 According to that

precondition, it is arguably implied that states choosing to adopt and implement a CCR Permit

Program would promulgate regulations applicable to “CCR structures.”46 Regulations

promulgated by a state that would ultimately apply to owners and operators of CCR structures

would depend on each state’s interpretation of the criteria listed among the proposed Permit

Program Specifications (though EPA and possibly court review would impose a check on

unreasonable state interpretations).

As proposed, apart from the potential for EPA to issue guidance or technical assistance, state CCR

Permit Programs would likely be created with no involvement from EPA—with regard to either

See preamble to S. 3512.

RCRA Section 4005; 42 U.S.C. §6945. For background regarding the open dumping prohibition, including state and

federal roles in enforcing it, see Appendix A.

See discussion in Appendix A.

Provisions in proposed Section 4011(c).

Proposed Section 4011(c)(1)(A).

See footnote 23.

Congressional Research Service

Analysis of Recent Proposals to Amend RCRA

required elements of the program itself or the regulations that would be implemented by the

permit program.47 In contrast to other RCRA permit programs, EPA would have a substantially

different role in program implementation and enforcement.

By way of comparison, existing state programs to regulate landfills that receive MSW involved

the following actions by EPA and states with regard to program creation, implementation, and

enforcement:

•

EPA revised existing regulatory criteria applicable to sanitary landfills to apply to

owners and operators of MSW landfills. In the regulations promulgated by EPA,

they are defined as minimum national criteria to ensure protection of human

health and the environment.48 Owner/operators of MSW landfills were required

to comply with the criteria within two years.

•

Within 18 months after EPA promulgated the MSW landfill criteria, states were

required to adopt and implement a permit program to implement the criteria or

risk EPA enforcement of the criteria at facilities in the state. States either adopted

the federal criteria exactly or used them as a model to create their own

requirements applicable to MSW landfills.

•

EPA determined whether state programs were adequate to ensure facility

compliance with the federal criteria. That is, state regulations applicable to MSW

landfill owner/operators and their programs to enforce those standards were

required to be adequate to ensure that owner/operator compliance with the state

requirements would not pose a threat to human health from risks common to

waste disposal (e.g., contamination of groundwater above levels determined to be

safe for humans).

•

From the deadline for a state to adopt and implement a permit program (18

months after EPA promulgated the MSW landfill criteria) until that state had an

approved (“adequate”) permit program in place, EPA was authorized to directly

enforce the federal regulatory criteria at facilities in the state. By providing EPA

with authority to enforce federal criteria, states were encouraged to adopt,

implement, and enforce the federal criteria. Once a program was approved by

EPA, states had primary authority to implement and enforce their own program to

regulate MSW landfills. EPA had limited authority to intervene.

A CCR Permit Program would draw from selected elements of existing state programs to regulate

MSW landfills, but with different roles for states and EPA and a different timetable for program

implementation (the required elements of the CCR Permit Program are discussed in “Proposed

CCR Legislation Amending RCRA,” below). Not later than six months after bill enactment, each

state would be required to notify EPA whether it will adopt and implement a CCR Permit

Program. Not later than three years after bill enactment, participating states would be required to

submit to EPA certification that their CCR Permit Programs meet the Permit Program

Granted, RCRA provides EPA with broad authority to prescribe regulations as necessary to carry out its functions

under the law (42 U.S.C. §6912(a)(1)). However, since the proposed amendment to RCRA would explicitly provide no

new function to EPA with regard to program development (beyond the requirement to identify potential program

deficiencies, discussed in “EPA’s Potential Role in Program Oversight and Implementation”), EPA arguably would

lack authority to promulgate regulations that may be implemented via state CCR Permit Programs.

See 40 C.F.R. §258.1(a).

Congressional Research Service

Analysis of Recent Proposals to Amend RCRA

Specifications delineated in proposed Section 4011(c).49 Based on both explicit and implicit

directives in the proposed amendment to RCRA, EPA50 and state roles and authorities to create,

implement, and enforce requirements applicable to CCR structures appear to be as follows:

•

Participating states would interpret provisions in Section 4011, particularly the

Permit Program Specifications, and develop regulations based on their

interpretation. There is no explicit directive in the bills that the requirements

applied via the permit program be those necessary to protect human health (i.e.,

meet a federal standard of protection). Requirements adopted by the state would

likely meet a state-determined standard of protection. States would determine

when owner/operators would be required to comply with the requirements

implemented via the permit program and when they would issue permits.

•

Participating states would certify that they have a program in place within three

years of enactment of proposed Section 4011, including a legal certification that

the state has “fully effective statutes or regulations necessary to implement a coal

combustion residuals permit program that meets the [statutory] specifications.”

States would presumably promulgate regulations applicable to CCR structures.

Deadlines for compliance and details regarding program applicability would not

be known until states promulgate regulations that would be implemented by the

permit program.

•

EPA would be required to notify states if they did not meet the deadlines to notify

the agency whether they intended to implement a program, or to submit to EPA

their program certification. At any time after a state is implementing a CCR

Permit Program (e.g., is issuing permits and enforcing permit conditions), EPA

would be required to identify and notify a state of any deficiencies in meeting the

Permit Program Specifications. EPA would not be explicitly required to identify

as a program “deficiency” program elements outside the required Permit Program

Specifications (e.g., compliance deadlines or details regarding program

applicability that may be included in state regulations or in state procedures to

implement those regulations), and arguably could not.

•

If a state fails to remedy program deficiencies identified by EPA within the time

frame negotiated between the state and EPA, the agency would be required to

implement a permit program for a state. The time frame for that could vary

depending on the compliance deadlines established by the state. If EPA did

implement a CCR Permit Program in a state, it is not clear whether the agency

would be obligated to implement and enforce state requirements or EPA would

promulgate federal criteria necessary to implement the CCR Permit Program, in

accordance with its broad authority to promulgate regulations necessary to carry

out its functions under RCRA.51

Under this construct, EPA and state roles would be substantially different in developing,

implementing, and enforcing requirements applicable to CCR structures compared to their

That program certification would be required to provide information specified in the “State Actions” provisions in

proposed Section 4011(b)(2).

EPA would likely retain some latitude to interpret Section 4011 in a way that it views as necessary to ensure the

viability of the state programs. How EPA might use this latitude cannot be determined in advance.

Specified at 42 U.S.C. §6912(a)(1).

Congressional Research Service

Analysis of Recent Proposals to Amend RCRA

respective roles and authorities to implement and enforce requirements applicable to MSW

landfills. Also, CCR Permit Programs created pursuant to proposed Section 4011 would be

implemented in accordance with program definitions (e.g., “deficiencies”), procedures (e.g., EPA

review of state programs to identify program deficiencies at any time after states are

implementing the program, rather than determining program adequacy to ensure compliance with

a federal standard), and standards of protection (e.g., a presumption that states would develop

programs according to a state-determined standard) that differ from other permit programs

implemented by states under RCRA.

Congress may create a permit program for any constitutionally authorized purpose. By drawing

primarily from the existing federal regulations applicable to MSW landfills, state adoption of a

CCR Permit Program appears to be intended to result in state implementation of programs to

regulate CCRs comparable to existing state programs to regulate MSW landfills. Given that

potential purpose, a direct comparison of key elements of each program is helpful.

Existing Standards Relevant to a

CCR Permit Program

A CCR Permit Program, created pursuant to the proposed bills, would draw from certain existing

federal regulations and requirements, and proposed federal standards. In particular, required

elements of a CCR Permit Program would draw from existing federal regulatory criteria

applicable to owners and operators of MSW landfills (at 40 C.F.R. Part 258); selected EPA

requirements for state permit programs implementing the MSW landfill criteria (at 40 C.F.R. Part

229); and selected standards applicable to CCR landfills and surface impoundments included in

EPA’s June 2010 proposal to regulate CCRs, under its Subtitle D option. To determine the degree

to which a CCR Permit Program created under Section 4011 may resemble state programs to

regulate MSW landfills, it is helpful to outline how those state programs to regulate MSW

landfills were created and implemented and to recognize the purpose of selected details of those

regulations.

The Federal-State Program to Regulate MSW Landfills

One of RCRA’s key goals is to prevent contamination associated with waste disposal, if at all

practicable, rather than simply remedy it after discovery.52 Consistent with that goal, Congress

has required EPA to promulgate regulations applicable, among other things, to facilities that may

receive hazardous household wastes (subsequently defined in regulations as MSW landfills)

under Subtitle D.53 Provisions in RCRA that required EPA to promulgate those regulations

included certain minimum requirements that EPA was to include in the final regulations, as well

as a broad standard of protection the regulations were required to achieve.

See 42 U.S.C. §6902(a)(3)-(5).

See the directive to EPA to promulgate “standards applicable to owners and operators of hazardous waste treatment,

storage, and disposal facilities” at 42 U.S.C. §6924, and a directive to EPA to revise criteria applicable to sanitary

landfills to apply to solid waste disposal facilities that may receive hazardous household waste included in the

“Adequacy of certain guidelines and criteria: Revisions of guidelines and criteria” at 42 U.S.C. §6949a(c).

Congressional Research Service

Analysis of Recent Proposals to Amend RCRA

The Hazardous and Solid Waste Amendments of 1984 (HSWA; P.L. 98-616) amended RCRA

Subtitle D to address an issue almost identical to the one currently applicable to CCRs—that is,

the need to regulate a waste excluded from Subtitle C requirements. In developing the

amendments, Congress recognized that an explicit exemption from the Subtitle C requirements

did not mean that disposal of those wastes did not pose potential risks to human health and the

environment. For example, household waste is exempt from Subtitle C requirements. However, in

its amendments to RCRA, Congress recognized that disposal facilities that accept such waste may

need to comply with standards that were more detailed than the broad criteria applicable to

sanitary landfills.54 Rather than subject household waste to the full gamut of “cradle to grave”

Subtitle C regulations, Congress took an approach that could be implemented under Subtitle D.

That approach resulted in more detailed regulations than those applicable to sanitary landfills, and

included a stronger enforcement mechanism to ensure consistent state conformance with the

national standards.

HSWA amended Subtitle D to add Section 4010,55 in which Congress directed EPA to study the

extent to which the Subtitle D guidelines and criteria applicable to solid waste management and

disposal facilities, including landfills and surface impoundments, were adequate to protect human

health and the environment from groundwater contamination. Within three years, EPA was

required to report the results of its study to Congress, as well as any recommendations the agency

made based on the study findings. Further, EPA was required to revise the sanitary landfill criteria

to apply to facilities that may receive hazardous household wastes. Congress explicitly required

EPA to revise the existing sanitary landfill criteria to be

those necessary to protect human health and the environment and may take into account the

practicable capability of such facilities. At a minimum such revisions for facilities potentially

receiving such wastes should require ground water monitoring as necessary to detect

contamination, establish criteria for the acceptable location of new or existing facilities, and

provide for corrective action as appropriate.56

Once EPA promulgated the revised criteria, each state was required to “adopt and implement a

permit program or other system of prior approval and conditions, to assure that each solid waste

management facility within such state which may receive hazardous household waste ... will

comply with the [the newly revised] criteria.”57

EPA was required to determine whether each state developed an adequate permit program.58 As a

result of those directives, EPA promulgated the “Criteria for Municipal Solid Waste Landfills,” in

49 C.F.R. Part 258,59 and “Requirements for State Permit Program Determination of Adequacy,”

in 40 C.F.R. Part 239. The landfill criteria and required elements of an “adequate” permit program

were developed and implemented using data and information gathered over a more than 20-year

period. Over that time, working cooperatively with states, EPA has identified risks to human

Sanitary landfill standards refer to the broad “Criteria for Classification of Solid Waste Disposal Facilities and

Practices,” at 40 C.F.R. Part 257, promulgated by EPA to determine whether solid waste disposal facilities and

practices pose a reasonable probability of adverse effects on human health or the environment (i.e., open dumps).

See “Adequacy of Certain Guidelines and Criteria” at 42 U.S.C. §6949a.

42 U.S.C. §6949a(c)(1).

42 U.S.C. §6945(c)(1)(B).

42 U.S.C. §6945(c)(1)(C).

Final rules were promulgated October 9, 1991, in 56 Federal Register 51016.

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Analysis of Recent Proposals to Amend RCRA

health from waste management, regulatory criteria that effectively address those risks, and

regulatory programs adequate to ensure facility compliance with those regulatory criteria.

The MSW Landfill Criteria

In cooperation with individual states, among others, EPA established minimum national criteria

applicable to MSW landfills. The criteria are those necessary to protect human health and the

environment from risks associated with the disposal of MSW in a landfill.60 Generally, risks to

human health from waste management activities pertain to the potential for hazardous

contaminants (e.g., toxic constituents) in that waste to be released from the site of deposition and

to migrate off-site.61

To identify risks specific to the management of MSW in a landfill, during the public rulemaking

process, EPA gathered data regarding the types of waste common to those landfills, the

contaminants likely present in MSW, and protective measures to control human exposure to those

contaminants, among other factors. In 1991, the agency promulgated the following requirements

applicable to MSW landfills:

•

General standards—delineated the purpose of the regulations; detailed

compliance deadlines and specific regulatory criteria applicable to existing

facilities (generally within two years of the rules being finalized); and detailed

definitions of terms used in the regulations. Included in those general standards,

it is specified that the criteria apply directly to owners and operators of facilities

that meet the regulatory definition of an MSW landfill.

•

Location restrictions—applicable primarily to new units and lateral expansions of

existing units. Existing units located in certain restricted locations were required

to close.

•

Operating criteria—daily requirements applicable to both new and existing units.

•

Design criteria—applicable primarily to new units.

•

Groundwater monitoring and corrective action requirements—applicable to all

units, but also intended to ensure that existing units that did not meet necessary

design criteria would identify and respond to contaminant migration within a

certain time frame.

•

Closure/post-closure care—applicable to any unit upon closure.

•

Financial assurance criteria—applicable to any unit, to ensure the owner/operator

is able to clean up contamination, if necessary.

See 40 C.F.R. §258.1.

More specifically, EPA considers risk to be the chance of harmful effects to human health or ecological systems

resulting from exposure to an environmental stressor. A stressor is any physical, chemical, or biological entity that can

induce an adverse response. Stressors may adversely affect specific natural resources or entire ecosystems, including

plants and animals, as well as the environment with which they interact. EPA uses risk assessments to characterize the

nature and magnitude of health risks to humans (e.g., residents, workers, recreational visitors) and ecological receptors

(e.g., birds, fish, wildlife) from chemical contaminants and other stressors that may be present in the environment. See

EPA’s “Risk Assessment” web page, particularly its “Basic Information” page at http://epa.gov/riskassessment/

basicinformation.htm#risk and its “Human Health Risk Assessment” page at http://epa.gov/riskassessment/healthrisk.htm.

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Analysis of Recent Proposals to Amend RCRA

As finalized by EPA, the MSW landfill criteria are intended to apply to facilities that dispose of

largely “dry” waste. That is, they do not address issues specific to liquid waste accumulation in

surface impoundment ponds. New MSW landfills were required to ensure compliance with the

standards before they began operation. Owner/operators of existing facilities that did not comply

with applicable criteria by deadlines specified by EPA would be in violation of RCRA’s

prohibition on open dumping.62

As required by Congress, the MSW landfill criteria establish minimum federal standards that take

into account the practical capability of owners and operators and ensure that MSW landfills are

designed and managed in a manner that is protective of human health. Each standard in the MSW

landfill criteria is designed to be implemented by the owner or operator, with or without oversight

or participation by a regulatory agency (e.g., an approved state permit program). That is,

owner/operators of regulated disposal units were required to comply with applicable criteria by

the applicable deadlines, regardless of whether a state had adopted the federal criteria or had a

program in place to implement and enforce those criteria.

States were not precluded from adopting regulations more stringent than the federal criteria.

However, in requiring the criteria to meet a specific standard of protection, facility compliance

with the minimum national standard was intended to achieve a consistent level of protection from

threats specific to improper management of MSW.

State Programs to Implement the MSW Landfill Criteria

Congress intended states to be the primary entities to implement and enforce federal standards

applicable to waste management activities subject to the open dumping prohibition established

under Subtitle D. However, amendments to Subtitle D in HSWA created a role for EPA in state

adoption and implementation of the MSW landfill criteria. HSWA added a paragraph applicable

to “Control of Hazardous Disposal” in Section 4005.63 That paragraph includes provisions that

directed states to adopt a permit program to implement the MSW landfill criteria, and required

EPA to assess each state program. In particular, the 1984 amendments to Section 4005 required

•

each state, within 18 months of EPA promulgating the MSW landfill criteria, to

adopt and implement a permit program or “other system or prior approval and

conditions” to assure that each solid waste management facility within the state

that may receive MSW will comply with the MSW landfill criteria (or risk EPA

enforcement of the criteria, as discussed below); and64

•

EPA to determine whether each state “developed an adequate program” (i.e., a

program adequate to assure facility compliance with the MSW landfill criteria);

that determination could be made in conjunction with EPA’s decisions to

approve, disapprove, or partially approve state solid waste management plans.65

See “Upgrading of open dumps: Closing or upgrading of existing open dumps” at 42 U.S.C. §6945(a), and MSW

landfill criteria at 40 C.F.R. §§258.1(g) and (h).

42 U.S.C. §6945(c).

42 U.S.C. §6945(c)(1)(B).

42 U.S.C. §6945(c)(1)(C).

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Analysis of Recent Proposals to Amend RCRA

EPA subsequently promulgated “Requirements for State Permit Program Determination of

Adequacy,” in 40 C.F.R. Part 239, also referred to as the State Implementation Rule (SIR). The

SIR includes the following four subparts:

•

General—specifies the purpose and scope of the program and defines key

program terms.

•

State Program Application—lists required components of program application,

including detailed information that must be provided by a state in the narrative

description of its program and required components of the state’s legal

certification of program requirements.

•

Requirements for Adequate Permit Programs—details minimum permitting

requirements, compliance monitoring authority, and enforcement authority a state

would need to demonstrate to EPA before the program could be deemed adequate

by EPA; and requires state programs to provide for citizen action in the state civil

enforcement process.

•

Adequacy Determination Procedures—includes criteria EPA would use to

make its adequacy determination or to partially approve state programs,

procedures states must follow if they needed to modify their programs, and

criteria and procedures EPA may use to withdraw its determination of adequacy.

(Individual criteria included in the SIR and provisions in Section 4011 comparable to required

elements of the SIR are listed in Table B-1.) The resulting state permit programs were the body of

laws, authorities, and procedures that comprise the state’s system for regulating the location,

design, operation, groundwater monitoring, closure, post-closure care, corrective action, and

financial assurance of regulated MSW landfills. A state program that met the requirements in the

SIR would be expected to be adequate to assure facility compliance with the MSW landfill

criteria.

EPA did not intend the SIR to be a rigid set of criteria. States could regulate MSW landfills based

on the federal MSW landfill criteria exactly, or could allow owners and operators to use sitespecific alternative approaches to meet the federal performance standards (i.e., to protect human

health and the environment). In providing a certain degree of flexibility, the SIR allowed states to

adopt regulations that may not have been identical to the MSW landfill criteria. All state

programs approved by EPA, however, were determined to be adequate to assure facility

compliance with standards protective of human health and the environment.66

EPA’s determination of state program adequacy was also relevant to the agency’s potential to

directly enforce the MSW landfill criteria. Specifically, HSWA’s new Section 4005(c) added the

following provisions that specify the narrow set of conditions under which EPA would be

authorized to directly enforce the open dumping prohibition at facilities subject to the MSW

landfill criteria:

•

In any state that EPA determined did not adopt a program adequate to assure

facility compliance with the MSW landfill criteria, EPA could use authorities

available in Sections 3007 and 3008 in Subtitle C (“Inspection” and “Federal

See preamble section pertaining to “Authority” in EPA’s “Subtitle D Regulated Facilities; State Permit Program

Determination of Adequacy; State Implementation Rule: Final Rule,” 63 Federal Register 57026, at 57027.

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Analysis of Recent Proposals to Amend RCRA

Enforcement” provisions in 42 U.S.C. §§6927 and 6928) to directly enforce the

open dumping prohibition at MSW landfills in that state.67

•

Since the inspection and federal enforcement authorities cited apply explicitly to

the management of hazardous waste, an additional provision specifies that, when

drawing upon the federal enforcement authorities (§6928), the term

“requirements of this subchapter” in Subtitle C would be deemed to include

criteria “promulgated by the Administrator under Sections 6907(a)(3) and

6944(a)” of RCRA (i.e., the MSW landfill criteria), and the term “hazardous

wastes” in the inspection provisions (§6927) would be deemed to include “solid

waste at facilities that may handle hazardous household wastes” (i.e., MSW

landfills).68

Absent the above provisions, EPA has no authority to directly enforce the federal MSW landfill

criteria or, likely, provide states with incentive to adopt and enforce the federal criteria. EPA has

since approved all state programs, deeming them adequate to enforce the federal regulatory

criteria. Once state programs to implement the MSW landfill criteria were approved by EPA,

states have primary authority to implement and enforce their own MSW landfill criteria

applicable to owners and operators of MSW landfills. States “implement” those regulations by

issuing permits to owners and operators of regulated landfills that specify compliance obligations

applicable to that facility.

When the SIR was finalized in 1998, EPA intended states to continue their lead role in

implementing the federal MSW landfill criteria. At that point, seven years after the MSW landfill

criteria had been promulgated, 40 states and one U.S. territory had already obtained full EPA

approval of their permit programs. Legally, EPA could have directly enforced the federal MSW

landfill criteria at any MSW landfill in a state without an EPA-approved program. However, EPA

never did so. Currently, given that all states have EPA-approved permit programs, EPA has no

authority to directly enforce the MSW landfill criteria (i.e., to enforce the Subtitle D open

dumping prohibition at facilities subject to the MSW landfill criteria).69

Proposed EPA Standards to Address Risks

Specific to CCR Management

As discussed above, current state programs to regulate MSW landfills began with the

promulgation of federal regulatory criteria identified by EPA as those necessary to address risks

specific to the management of MSW in landfills. States then adopted those federal criteria and

currently implement them using an EPA-approved permit program. MSW landfill owner/operator

compliance with a permit is, hence, intended to achieve a baseline level of protection.70

See 42 U.S.C. §6945(c)(2)(A).

See 42 U.S.C. §6945(c)(2)(B).

EPA may take action at a waste disposal site classified as an “open dump” pursuant to its “imminent and substantial

endangerment” authority under RCRA Section 7003 (42 U.S.C. §6973). However, that authority may or may not be

comparable to the ability to directly implement and enforce regulations intended to prevent the spread of contamination

from a waste disposal site.

See 42 U.S.C. §6945(c)(1)(B).

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Analysis of Recent Proposals to Amend RCRA

If state programs to regulate CCRs were intended to be similar to state programs to regulate

MSW landfills, regulations or other requirements established by individual states would be

designed to protect human health from risks specific to CCR disposal and use. The degree to

which state regulations implemented by a CCR Permit Program may protect human health from

risks specific to CCR management would then depend on

•

risks specific to the management of CCRs and

•

protective measures (in the form of regulations applicable to CCR management)

that could address those risks.

EPA’s June 2010 proposals to regulate CCRs reflect EPA’s effort to determine those risks and

protective measure to address them. As discussed, EPA proposed two alternative regulations

based on its existing statutory authorities in RCRA under Subtitles C and D. EPA’s determination

to regulate CCRs under either subtitle stems from directives included in the Solid Waste Disposal

Act Amendments of 1980 (P.L. 96-482). That amendment to RCRA includes provisions

commonly referred to as the Bevill Amendment or Bevill Exclusion, which are found in several

RCRA subtitles, but primarily under Subtitle C. (As noted, information regarding the Bevill

amendment provisions and EPA’s response to directives in those amendments is provided in

Appendix C.)

Under the Bevill provisions, “fly ash waste, bottom ash waste, slag waste, flue gas emission

control waste, and other byproduct materials generated primarily from the combustion of coal or

other fossil fuels” (i.e., CCRs) were explicitly excluded from the Subtitle C requirements,

pending a determination by EPA of whether such regulation was warranted.71 EPA’s June 2010

proposal was part of the agency’s ongoing effort to gather data necessary to determining whether

regulating CCRs under Subtitle C is warranted. To make that determination, included among the

Bevill amendment provisions, EPA was directed to prepare a detailed and comprehensive study

on the adverse effects on human health and the environment, if any, of the disposal and use of

CCRs.72 Among the study criteria, EPA was required to identify

•

the source and volumes of CCRs generated annually,

•

methods of disposal and use,

•

the potential danger, if any, to human health and the environment from those

methods, and

•

documented cases in which danger to human health or the environment from

surface runoff or leachate has been proved.

In determining whether CCRs should be subject to Subtitle C requirements, EPA also used federal

regulatory criteria applicable to the identification and listing of hazardous waste. Of relevance to

CCRs would be whether the waste could be identified and specifically listed by EPA as hazardous

waste based on its toxicity.73 When making that determination, EPA must consider a range of

factors, some of which are similar to the study data included in the Bevill amendment. Additional

factors include data regarding the nature and concentration of toxic constituents present in the

waste; plausible types of improper management to which the waste could be subjected; the

The exclusion is specified under 42 U.S.C. §6921(b)(3).

Study criteria are specified at 42 U.S.C. §6982(n).

40 C.F.R. §261.11.

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potential for toxic constituents to degrade and migrate from the point of deposition under

plausible management conditions; and regulation by other government agencies or regulatory

programs intended to address health or environmental hazards posed by a waste or toxic

constituent in that waste.

Using those various criteria, EPA determined that the material is generated in large volumes

annually (e.g., approximately 130 million tons in 2011);74 that it contains more than 40 toxic

constituents, including antimony, arsenic, barium, beryllium, cadmium, chromium, lead, mercury,

and selenium; and that those constituents can degrade and migrate from the point of deposition

under certain conditions.75

EPA identified common methods of disposal and use, potentially regulated under RCRA, that

resulted in documented cases of damages that could cause human health concerns. Those

management methods include disposal in landfills, accumulation in surface impoundment ponds,

and use in land applications equivalent to landfill disposal such as the placement of large volumes

of CCRs on land for use as structural or embankment fill (e.g., to contour the land at a

construction site or raise a roadbed).76 Using EPA’s quantifiable groundwater risk assessment

data77 and information from documented CCR damage cases,78 EPA identified various pathways

in which humans may be exposed to toxic constituents in CCRs at levels high enough to cause

health concerns. The pathways under which exposure would most likely occur include the

following:

•

contaminant leaching and migration off-site when CCRs are deposited in an

unlined unit (e.g., a landfill, surface impoundment, sand pit, quarry, construction

site);

See the American Coal Ash Association’s “2011 Coal Combustion Product (CCP) Production & Use Survey Report”

at http://www.acaa-usa.org/associations/8003/files/Final2011CCPSurvey.pdf.

See EPA’s June 2010 proposal at 75 Federal Register 35128, at 35138.

The placement of CCRs in mines as minefill has been identified by EPA as disposal. However, that disposal method

is not subject to RCRA. Instead, potential regulations applicable to the placement of CCRs in mines as minefill are

currently being considered by the Department of the Interior’s Office of Surface Mining Reclamation and Enforcement

in accordance with directives to the agency in the Surface Mining Control and Reclamation Act of 1977 (SMCRA).

EPA’s revised risk assessment, “Human and Ecological Risk Assessment of Coal Combustion Wastes,” is discussed

in its June 2010 proposal at 75 Federal Register 35128, at 35144-35146. This April 2010 draft risk assessment is

included among the “Supporting & Related Materials” associated with the proposed rule. It is available through the

“regulations.gov” website at http://www.regulations.gov, under Docket ID EPA-HQ-RCRA-2009-0640.

“CCR damage cases” identified by EPA have been either “proven” or “potential” damages cases. Proven damages

are those cases with (1) primary maximum contaminant levels (MCLs) or other health-based standards measured in

groundwater at sufficient distance from the CCR management unit to indicate that hazardous constituents have

migrated to the extent that they could cause human health concerns, and/or (2) where a scientific study provides

documented evidence of another type of damage to human health or the environment (e.g., ecological damage), and/or

(3) where there has been an administrative ruling or court decision with an explicit finding of specific damage to

human health or the environment. In cases of co-management of CCRs with other industrial waste types, CCRs must be

clearly implicated in the reported damage. Potential damages are cases with documented MCL exceedances measured

in groundwater beneath or close to the waste source. In these cases, the association with CCRs has been established, but

the documented exceedances had not been demonstrated at a sufficient distance from the CCR management unit to

indicate that constituents in the CCRs had migrated to the extent that they could result in an exposure and cause human

health concerns. EPA noted that documented evidence of proven damages to groundwater and surface water from 27

disposal sites and potential damages at 40 sites resulted from CCR constituents migrating into groundwater at rates that

were generally the same with those predicted in the risk assessment with respect to constituents that migrated—

primarily arsenic, cadmium, lead, and selenium. See discussion at 75 Federal Register 35128, at 35155, 35172-35173,

35230-35239.

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Analysis of Recent Proposals to Amend RCRA

•

direct, uncontrolled discharge or release of liquid waste to surface water, as in the

structural failure of a surface impoundment (e.g., the Kingston release) or as a

result of run-on/runoff across the deposition site during rain/flood events; and

•

fugitive dust emissions, when fine particulates in dried ash become airborne, as at

landfills or large-scale fill operations.

Of those pathways, risk to human health was highest from contaminant leaching and migration to

surface and groundwater. EPA found that risk was largely eliminated through the use of a

composite liner.

Leading up to its 2010 proposal, EPA attempted to determine the extent to which

•

owners and operators of individual facilities may have implemented necessary

protective measures, and

•

state regulatory programs may require protective measures to control risks EPA

identified as associated with CCR disposal and use.

Based on the limited data available to EPA, the agency determined that owners and operators of

CCR landfills and surface impoundments are likely to install liners and groundwater monitoring

systems in new CCR disposal units, but that the majority of disposal units were likely to be older

and lacked liners and groundwater monitoring. Using data gathered in 2004, EPA determined that

31% of the CCR landfills and 62% of the CCR surface impoundments lacked liners, and 10% of

the CCR landfills and 58% of the CCR surface impoundments lacked groundwater monitoring.

EPA found that the majority of states appeared to regulate CCR landfills adequately, but that there

appeared to be gaps in state regulatory oversight of surface impoundments. The latter may be

regulated under a state’s dam safety program (intended to control risks related to the unit’s

structural integrity), but not necessarily a state’s solid waste management program (intended to

control risks specific to contaminant spread related to the land-based accumulation of liquid

waste). For example, a 2009 survey of states found that among survey respondents, more than

60% of states required neither liners nor groundwater monitoring for surface impoundments (67%

and 61%, respectively).79 EPA noted that the survey results are “particularly significant as

groundwater monitoring for these kinds of units is a minimum for any credible regulatory

regime.”80 The majority of states responding to the survey also did not have siting controls,

inspection, or structural integrity requirements for surface impoundments—requirements

necessary to minimize the potential of a structural failure.

EPA further noted, however, that it lacks details regarding the manner and degree to which states

are regulating the disposal and use of CCRs. To address potential gaps (i.e., to establish

regulations applicable to CCR disposal and use in states that are not already regulating CCRs in a

manner that protects human health), EPA’s June 2010 proposal was intended to create a national

standard to regulate CCRs destined for disposal. In its Subtitle D option, EPA would add to 40

C.F.R. Part 257, “Standards for the Receipt of Coal Combustion Residuals in Landfills and

Summary results of the Association of State and Territorial Solid Waste Management Officials (ASTSWMO)

“Combustion by-products (CCB) Survey” are available at http://www.regulations.gov, under Docket ID EPA-HQRCRA-2009-0640. For EPA’s discussion of the survey findings, see EPA’s June 2010 proposal at 75 Federal Register

35128, at 35152.

Ibid.

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Analysis of Recent Proposals to Amend RCRA

Surface Impoundments.” Those standards would apply to solid waste disposal units, defined as

follows:

•

CCR landfill—disposal facility or part of a facility where CCRs are placed in or

on land and that is not a land treatment facility, a surface impoundment, an

underground injection well, a salt dome formation, a salt bed formation, an

underground mine, a cave, or a corrective action management unit. For purposes

of this part, landfills also include piles, sand and gravel pits, quarries, and/or

large-scale fill operations. Sites that are excavated so that more coal ash can be

used as fill are also considered CCR landfills.

•

CCR surface impoundment—facility or part of a facility that is a natural

topographic depression, man-made excavation, or diked area formed primarily of

earthen materials (although it may be lined with man-made materials), which is

designed to hold an accumulation of CCRs containing free liquids, and which is

not an injection well. Examples of CCR surface impoundments are holding,

storage, settling, and aeration pits, ponds, and lagoons. CCR surface

impoundments are used to receive CCRs that have been sluiced (flushed or

mixed with water to facilitate movement), or wastes from wet air pollution

control devices, often in addition to other solid wastes.

Those definitions were proposed by EPA based on findings in its groundwater risk assessment

and its documentation of CCR damage cases related to CCR management in such units (see

definitions of selected relevant terms applicable to waste disposal facilities under the “General

Standards” listed in Table A-2).

To identify minimum national standards for the safe disposal of CCRs, EPA’s June 2010 Subtitle

D regulatory option drew primarily from the existing criteria applicable to MSW landfills under

40 C.F.R. Part 258.81 According to EPA, the MSW landfill criteria provide a comprehensive

framework for all aspects of the disposal of wastes such as CCRs in land-based units. Further,

based on its experience with the requirements, EPA stated its belief that the MSW landfill criteria

represent a reasonable balance between “ensuring the necessary protection from risks of CCR

disposal and the practical realities of facilities’ ability to implement the criteria.”82

EPA tailored and supplemented the MSW landfill criteria to address threats to human health

specific to CCR management. For example, the existing MSW landfill criteria were developed to

be implemented in the context of a permitting program, where an overseeing authority evaluates

the requirements and can adjust them, as appropriate, to account for site-specific conditions.

Because there is no corresponding guaranteed permit mechanism under its Subtitle D regulatory

option, EPA integrated selected regulatory criteria from 40 C.F.R. Part 265. Those criteria were

for “interim status” hazardous waste TSDFs—requirements designed to apply to owners and

operators of such facilities during the interim period between promulgation of the final hazardous

waste regulations and the implementation of permit programs used to ensure facility compliance

with those regulations. Also, EPA asserted that selected requirements applicable to TSDFs were

particularly relevant in developing the proposed standards for surface impoundments, since the

MSW landfill criteria did not address risks from contaminant spread associated with the

While the CCR bills from the 112th Congress also draw from MSW regulatory requirements, there are also

differences, which are discussed in the following sections.

See EPA’s discussion under “1. Regulatory Approach” at 75 Federal Register 35128, at 35193, June 21, 2010.

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Analysis of Recent Proposals to Amend RCRA

accumulation of liquid waste, since criteria applicable to the management of liquid wastes are not

included under 40 C.F.R. Part 258.83

The MSW landfill criteria also do not address structural integrity issues associated with the

accumulation of coal ash slurry (risks from a catastrophic release of liquid waste). To address

such risks, selected proposed standards for CCR surface impoundments were modeled on the

Mine Safety and Health Administration (MSHA) regulations in 30 C.F.R. Part 77. In particular,

EPA drew from the MSHA mine safety standards for “water, sediment, or slurry impoundments

and impounding structures” at 30 C.F.R. §77.216. 84 EPA’s decision to draw from the MSHA

standards was based on its belief that records compiled by MSHA for its rulemaking (for 30

C.F.R. Part 77) and the agency’s 40 years of experience in implementing those requirements

provided evidence that similar requirements, applied to CCR surface impoundments, will prevent

a catastrophic release of CCRs from surface impoundments, as occurred at TVA’s facility in

Kingston, TN, and will generally meet RCRA’s mandate to ensure the protection of human health

and the environment.85

Taking these various issues into account, EPA’s Subtitle D regulatory option reflects the

framework of MSW landfill criteria (e.g., general requirements, location restrictions, operating

and design criteria), but includes selected criteria drawn from MSHA standards and standards

applicable to hazardous waste TSDFs, necessary to protect human health from risks unique to

CCR management.86 The proposed standards include criteria EPA deemed necessary to control

contaminant leaching and migration, particularly from the disposal of noncontainerized liquid

waste, a large-scale release due to the structural failure of a surface impoundment pond, or the

release of coal ash dust to the air. The following standards are among those intended to address

concerns associated specifically with CCR disposal:

•

New disposal units (landfills and surface impoundments) would be required to be

placed above the natural water table, and could not be located in wetlands, within

200 feet of a fault zone, or in a seismic impact zone.

•

New or existing disposal units could not be located in an unstable area (e.g., a

location susceptible to natural or human-induced events or forces capable of

impairing the integrity of the unit). Existing facilities in an unstable area would

be required to close within five years.

•

New disposal units would be required to be constructed with a composite liner.

Within five years, existing surface impoundments would be required to have

solids removed and be retrofitted with a composite liner.

Ibid., at 75 Federal Register 35128, at 35193-35194; also see 40 C.F.R. Part 265, Subpart K, “Interim Status

Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities: Surface

Impoundments.”

See proposed 40 C.F.R. Section 257.71, “Design criteria for existing CCR surface impoundments.”

See 75 Federal Register 35128, at 35243, June 2010.

As noted in the section “EPA Proposals to Regulate the Disposal of CCRs,” EPA’s Subtitle D regulatory option was

proposed pursuant to its existing authority in RCRA Section 4004(a) (42 U.S.C. §6944(a)) to develop criteria necessary

to determine which facilities may be classified as sanitary landfills and not open dumps. Pursuant to that directive,

EPA’s proposed Subtitle D criteria would establish minimum national performance standards necessary to ensure that

“no reasonable probability of adverse effects on health or the environment” will result from solid waste disposal

facilities or practices (as determined by EPA, using evidence presented in its proposed rulemaking). Practices not

complying with EPA’s proposed criteria would constitute “open dumping,” prohibited in RCRA Section 4005(a) (42

U.S.C. §6945(a)).

Congressional Research Service

Analysis of Recent Proposals to Amend RCRA

•

All units would be required to comply with the groundwater monitoring

requirements within one year of the effective date of a final rule; new CCR units

must have groundwater monitoring systems installed before CCRs could be

disposed of in the units.

•

All units would be required to control fugitive dust emissions.

•

All units would be required to have an independent registered professional

engineer certify that the design of the run-on/runoff control system meets

requirements specified in the regulations, and the owner/ operator would be

required to notify the state that the design has been placed in the operating record

and on the owner’s or operator’s publicly accessible Internet site.

•

Owners and operators of all existing surface impoundments would be required to

maintain certain information about the units (e.g., a description of the physical

and engineering properties of the foundation materials on which the CCR surface

impoundment is constructed), and a certification by an independent registered

professional engineer that the design of the CCR surface impoundment is in

accordance with current, prudent engineering practices for the maximum volume

of CCR slurry and CCR wastewater that can be impounded therein and for the

passage of runoff resulting from the “design storm” that exceeds the capacity of

the CCR surface impoundment.87

Differences between the MSW landfill criteria and EPA’s proposed standards for CCR landfills

and surface impoundments can be seen by comparing the two sets of standards, listed in Table A2.

Proposed CCR Legislation Amending RCRA

As noted, the House and Senate bills considered in the 112th Congress would add to Subtitle D of

RCRA a new Section 4011, “Management and Disposal of Coal Combustion Residuals.”88 The

bills would encourage states to create permit programs according to statutory standards included

in the amendment.

Section 4011 would provide a framework for states to create permit programs to regulate CCR

management. Generally, the term “permit program” refers to the body of requirements that a

permitting authority (generally a state agency) uses to implement and enforce regulations. The

proposed Section 4011 would not create a permit program, per se. Instead, it would provide the

framework that states may be expected to use to create a permit program (i.e., regulations

applicable to CCR disposal units and the program to implement and enforce those regulations).

In examining waste management practices, EPA has determined that runoff is one of the major sources of hazardous

constituent releases from mismanaged waste disposal facilities, including CCR landfills and surface impoundments.

EPA proposed that runoff control systems from the active portion of CCR disposal units be required to collect and

control at least the water volume resulting from a 24-hour, 25-year storm (the “design storm”). This protects surface

water that would otherwise flow untreated into a body of water. For more information, see EPA’s June 2010 regulatory

proposal at 75 Federal Register 35128, at 35203.

Unless otherwise noted, discussion of the proposed amendment to RCRA refers to provisions included in the Coal

Ash Recycling and Oversight Act of 2012 (S. 3512) or Title IV of the Stop the War on Coal Act of 2012 (H.R. 3409),

proposed during the 112th Congress.

Congressional Research Service

Analysis of Recent Proposals to Amend RCRA

Section 4011 would provide the program specifications a state would use to create its permit

program, allowing states a certain degree of flexibility to determine details regarding how the

program would be implemented and to whom it would apply.

Provisions of the proposed bills discussed below are those likely to have the most impact on the

development and implementation of individual state CCR Permit Programs, and EPA’s potential

role in oversight and implementation of those programs.

Provisions Relevant to Potential State CCR Permit Programs

To create their own programs to regulate CCRs, states would draw primarily from provisions in

the proposed Section 4011 that specify State Actions, Permit Program Specifications, and

Definitions in Sections 4011(b), (c), and (k), respectively. Pursuant to the State Actions

provisions, states would be expected to notify EPA within six months of the bill’s enactment

whether they intend to adopt and implement a CCR Permit Program under Section 4011. EPA

would be required to implement the program in states that choose not to do so.89 A CCR Permit

Program could be implemented pursuant to Section 4011 only by a state that maintains an

approved MSW landfill permit program or is authorized to implement the federal hazardous

waste management program under RCRA Subtitle C. Using those preconditions, all states could

implement a CCR Permit Program under Section 4011. It is assumed that all states in which

CCRs are managed (i.e., primarily states with coal-fired power plants) would opt to implement

their own program.90

Within 36 months of bill enactment, states (those that notify EPA they will implement their own

program) must submit to EPA a certification explaining how their program meets the Permit

Program Specifications in proposed Section 4011(c). The certification would require a narrative

description of the state’s program explaining how the state will assure its CCR Permit Program

meets program specifications. Information required to be included in the certification appears to

be drawn from, but would be less detailed than, information EPA required states to provide in

their application for approval of state permit programs to implement the MSW landfill criteria.

(See CCR Permit Program certification requirements compared to 40 C.F.R. Part 239, Subpart

B—State Program Application requirements listed in Table B-1.)

The proposed amendment would not explicitly require the agency implementing the program

(presumably states) to promulgate regulations applicable to waste disposal facilities that may

receive CCRs. However, program preconditions arguably imply that states would promulgate

such regulations. Specifically, the Permit Program Specifications in Section 4011(c) include two

paragraphs titled “Minimum Requirements” and “Revised Criteria.” The first provision listed

among the Minimum Requirements specifies

IN GENERAL—A coal combustion residuals permit program shall apply the revised criteria

described in paragraph (2) to owners or operators of structures, including surface

impoundments, that receive coal combustion residuals.91 [Emphasis added.]

See proposed Section 4011(e).

See the August 1, 2011, Congressional Budget Office estimate provided to the House of Representatives prepared for

H.R. 2273, discussion applicable to “Certification of State CCR permit programs,” included in H.Rept. 112-226.

Proposed Section 4011(c)(1)(A).

Congressional Research Service

Analysis of Recent Proposals to Amend RCRA

“[P]aragraph (2)” states the “Revised Criteria” proposed in Section 4011(c)(2). 92 Under that

paragraph, specific subparts of the MSW landfill criteria and selected individual criteria are cited.

For example, the paragraph entitled Revised Criteria begins “The revised criteria described in this

paragraph are ... ,” followed by provisions such as

•

“the revised criteria for design, groundwater monitoring, corrective action,

closure, and post-closure, for structures, including—for new structures and lateral

expansions of existing structures ... the revised criteria regarding design

requirements described in” 40 C.F.R. §258.40, except that the leachate collection

system requirements in 40 C.F.R. §258.40(a)(2) do not apply to structures that

are surface impoundments;93

•

“for all structures that receive coal combustion residuals after the date of

enactment of this section, the revised criteria for air quality described in” 40

C.F.R. §258.24;94

•

“for all structures that receive coal combustion residuals after the date of

enactment of this section, the revised criteria for financial assurance described

in” 40 C.F.R. Part 258, Subpart G.95

In addition to the “In General” provision (cited above), the Minimum Requirements include five

provisions drawn from EPA’s June 2010 proposed Subtitle D standards for CCR landfills and

surface impoundments. Those proposed provisions would apply to the following:

•

4011(c)(1)(B) Structural Integrity—related to certain risks associated with a

catastrophic release from surface impoundments. EPA intended those risks to be

addressed, at least in part, in its “Design criteria for existing CCR surface

impoundments and lateral expansions” (proposed 40 C.F.R. §257.71, included

among the Design Criteria). Compared to the bills’ structural integrity provisions,

EPA’s proposed criteria included more detailed requirements comparable to the

MSHA standards (discussed above in “Proposed EPA Standards to Address Risks

Specific to CCR Management” and detailed in Table A-3 in Appendix A).

•

4011(c)(1)(C) Location—similar to EPA’s proposed 40 C.F.R. §257.60,

“Placement above the natural water table,” included among the Location

Restrictions criteria, intended to address risks from contaminant spread by

locating units close to groundwater (see EPA’s proposed criteria listed in Table

A-2).

•

4011(c)(1)(D) Wind Dispersal—similar to EPA’s proposed 40 C.F.R. §257.80,

“Air Criteria,” included among proposed Operating Criteria, intended to address

issues associated with fugitive emissions of coal ash dust (see Table A-2).

At proposed Section 4011(k)(5), the term “revised criteria” is also separately defined as “the criteria promulgated for

municipal solid waste landfill units under section 4004(a) and under section 1008(a)(3), as revised under section

4010(c).” That definition describes the MSW landfill criteria at 40 C.F.R. Part 258. In Section 4011(c)(2), depending

on the context in which it is used, the term “revised criteria” may mean specific MSW landfill criteria or the Revised

Criteria provisions in proposed Section 4011(c)(2) applied to CCR structures via a CCR Permit Program.

Proposed Section 4011(c)(2)(A)(i).

Proposed Section 4011(c)(2)(C).

Proposed Section 4011(c)(2)(D).

Congressional Research Service

Analysis of Recent Proposals to Amend RCRA

•

4011(c)(1)(F)(ii) State Notification and Groundwater Monitoring:

Groundwater Monitoring—within one year of submitting its program

certification to EPA, a state would require the owner or operator of each

regulated “structure” to comply with the groundwater monitoring requirements

listed under the Revised Criteria (at proposed Section 4011(c)(2)(A)(ii)).

•

4011(c)(1)(J) Requirements for Surface Impoundments That Do Not Meet

Certain Criteria—related to certain risks associated with contaminant migration

from unlined surface impoundments. EPA’s proposed criteria at Section 257.71

would require facility owners and operators to implement standards necessary to

prevent contaminant spread; the proposed provision that would be applied via the

permit program would prescribe actions a state would be required to take after it

was determined that contaminants had migrated from the deposition site.

In the narrative description of its program, required to be provided to EPA under the State Actions

provisions, states would be required to describe their program, including “a legal certification that

the state has, at the time of certification, fully effective statutes or regulations necessary to

implement a coal combustion residuals permit program that meets the [Permit Program

Specifications in proposed Section 4011(c)].”96 Coupled with the general directive included under

the Minimum Requirements (discussed above), it is implied, but not explicitly required, that each

state implementing a CCR Permit Program pursuant to proposed Section 4011 would promulgate

regulations applicable to CCR structures modeled after the explicitly cited criteria applicable to

MSW landfills (presumably modified to apply to CCR structures) and the five criteria (listed

above) included under the Minimum Requirements.

Provisions cited under the Revised Criteria provisions include subparts of or specific criteria in

the MSW landfill criteria pertaining to location restrictions, operating criteria, design criteria,

groundwater monitoring and corrective action requirements, closure/post-closure care, and

financial assurance. They do not, however, cite or separately include provisions comparable to

“general” standards included in the MSW landfill criteria. Those general standards specify the

intended scope, purpose, and applicability of the regulations, as well as compliance deadlines that

existing facilities were required to meet. For example, the MSW landfill criteria specify criteria

that will or will not apply to disposal units of a certain size, units that accept waste within a

specific time frame, or that stopped receiving waste by a certain date. The general standards also

define terms necessary to determine program applicability and to clarify required elements of

specific criteria. (See 40 C.F.R. Part 258, Subpart A—General criteria listed in Table A-2).

Absent the inclusion of requirements comparable to general criteria, states would have discretion

to define those criteria, implicitly within reason.97

The Definitions in proposed Section 4011(k) would likely affect the applicability of state

regulations implemented by a CCR Permit Program. The key definition is that of a “structure.” In

the Permit Program Specifications, all Revised Criteria and the five relevant Minimum

Requirements would apply to structures that may receive CCRs. A structure would be defined as

“a landfill, surface impoundment, or other land-based unit” that may receive CCRs, with the

exception of land-based units that may receive “only de minimis quantities” of CCRs “if the

Proposed Section 4011(b)(2)(B)(iv).

After the states, and possibly EPA, interpret the statute, it would ultimately be left to the courts to determine the

extent of states’ discretion. For further analysis, contact the Congressional Research Service, American Law Division,

at 7-.....

Congressional Research Service

Analysis of Recent Proposals to Amend RCRA

presence of [CCRs] is incidental to the material managed in the unit.”98 The proposed definitions

do not include details regarding what may constitute a “CCR landfill” or a “CCR surface

impoundment” comparable to other federal regulations applicable to regulated waste disposal

facilities (see definitions of relevant terms in Table A-2). Hence, whether a particular entity may

be subject to CCR regulations would depend on a state’s exercise of broad latitude in defining

“CCR landfill” or “CCR surface impoundment.”

The proposed bills would define a “coal combustion residuals permit program” as “all of the

authorities, activities, and procedures that comprise the system of prior approval and conditions

implemented by or for a state to regulate the management and disposal of CCR” [emphasis

added].99 State regulations implemented by that program would not be explicitly required to meet

a federal protection standard or other minimum standard of protection, as now required of

regulations under RCRA.100 CCR regulations promulgated under a state’s own authorities would

then apply to CCR structures based on meeting any standard of protection deemed appropriate by

that state.

The program Minimum Requirements also include five provisions that appear to be drawn, in

part, from selected “Requirements for Adequate Permit Programs” included in 40 C.F.R. Part 239,

Subpart C.101 Those five provisions, as well as state program certification requirements specified

in the State Actions provisions,102 comparable to “State Program Application” requirements in 40

C.F.R. Part 239, Subpart B, are listed in Table B-1.

EPA’s Potential Role in Program Oversight and Implementation

Provisions that would specify EPA roles in program oversight and potential enforcement are

included in proposed Section 4011(d), “Written Notice and Opportunity to Remedy,” and

proposed Section 4011(e), “Implementation by Administrator.” These provisions specify elements

of a state’s program that EPA would be required to review, as well as conditions under which EPA

would be required to intervene and implement and enforce a CCR Permit Program for a state (the

latter would draw from authorities in existing sections of RCRA). It is difficult to determine in

advance how EPA may interpret directives regarding its role or how the proposed authorities may

affect state adoption and implementation of a permit program.

See proposed Section 4011(k)(6).

See definition in proposed Section 4011(k)(2).

100

Arguments may be conceived that proposed Section 4011 nonetheless contains an implicit standard of protection.

Each of these arguments, however, appears to have weaknesses. First, while the bills do incorporate many of EPA’s

MSW-landfill revised criteria—which are explicitly required by RCRA to protect health and the environment—the bills

do not incorporate all of those criteria, making the coverage of the criteria in the bills less complete than EPA’s revised

landfill criteria, and hence the standard of protection is also, arguably, less complete. (See the “Standard of Protection”

section of this report.) Second, while a “protect human health and the environment” standard of protection is found in

several RCRA provisions, such references appear to be confined to the particular sections in which they are found, or

not to be a binding mandate, or both. Moreover, while Congress saw fit to include explicit standards of protection in

other RCRA provisions, the bills stated no explicit standard of protection. For further analysis, contact the

Congressional Research Service, American Law Division, at 7-.....

101

See provisions listed under proposed Section 4011(c)(1) pertaining to Permits, State Notification, Agency

Requirements, Agency Authority, and State Authority.

102

See proposed Section 4011(b)(2).

Congressional Research Service

Analysis of Recent Proposals to Amend RCRA

There would be a number of differences between EPA’s role in state implementation of a CCR

Permit Program and EPA’s role in approving state programs to implement the MSW landfill

criteria. These differences pertain primarily to the program elements EPA would be required to

review, the time frame in which EPA may be expected to provide review of substantive elements

of the program, and the conditions under which EPA would have enforcement authority.

Proposed Section 4011(d) would require EPA to identify and notify a state of “deficiencies” in

specific elements of its program. Program elements that could be identified by EPA as having

some deficiency would include the state’s obligation to submit the required notification, submit

the required program certification, and maintain an approved permit program to implement the

MSW landfill criteria. Those directives do not involve a substantive review of the program, only a

determination that the state submitted required information at the appropriate time or continues to

maintain permit programs previously approved under RCRA. The potential for EPA to review a

substantive element of a CCR Permit Program is limited to a directive to EPA to notify a state and

provide an opportunity to remedy deficiencies if at any time the state is not implementing a

program that

•

meets the Permit Program Specifications in Section 4011(c) or

•

is consistent with the narrative description of its program, included in the

narrative description provided in the program certification (required in the State

Actions provisions in 4011(b)), and

•

maintains fully effective statutes or regulations necessary to implement a CCR

Permit Program.103

States would be obligated to provide information necessary for EPA to make its deficiency

determination within 90 days of EPA making the request. If EPA identifies a program deficiency,

the agency would be directed to collaborate with the state to establish a reasonable deadline to

address it.104 What constitutes a “reasonable deadline” is not explicitly defined, except that it

could not be “earlier than 180 days” after the date on which the state receives the notice.105

The requirement that EPA identify a deficiency at any time a state is not implementing a

program—as opposed to when a state is still developing its program—suggests that such a review

may be anticipated at some point in the future, when EPA could determine if a program was being

implemented as described in the state’s program certification. Such a point in the future arguably

might be after the state begins to issue permits or the state begins to enforce permit conditions.

With regard to its now-fulfilled obligations under RCRA Section 4005 (see “State Programs to

Implement the MSW Landfill Criteria,” above), EPA was explicitly required to determine whether

each state developed a program “adequate” to assure facility compliance with the MSW landfill

criteria.106 In the proposed amendment to RCRA, however, EPA would be directed to notify a

state of a “deficiency” if a state is not implementing a CCR program that meets statutory

specifications (in proposed Section 4011(c)). How EPA would interpret the directives in proposed

103

See proposed Section 4011(d)(1)(D).

See proposed Section 4011(d)(3)(A)(iv).

105

See proposed Section 4011(d)(3)(B)(i).

106

The directive to EPA to determine program adequacy is provided at 42 U.S.C. Section 6945(c)(1)(C); required

elements of state programs that EPA was required to deem adequate are provided at 42 U.S.C. Section 6945(c)(1)(B).

104

Congressional Research Service

Analysis of Recent Proposals to Amend RCRA

Section 4011(d) using this new terminology (i.e., identify “deficiencies” instead of determine

program “adequacy”) may not be known until EPA interprets the statutory directives and,

possibly, promulgates requirements detailing criteria EPA would use to make its determination.107

In the bills, EPA could identify as a deficiency program elements described in the Permit Program

Specifications or included in the narrative description of a state’s program. Apart from those

program elements, EPA would not be explicitly required to assess other program elements (e.g.,

how a state defines a landfill that receives CCRs). EPA would also not be explicitly required to

determine whether state regulations applicable to CCR disposal may achieve a baseline standard

of protection. EPA seemingly could not conduct enforcement actions against owner/operators of

CCR structures in states implementing a CCR Permit Program.

Proposed Section 4011(e) prescribes conditions under which EPA would be required to

implement a CCR program for a state. For example, EPA would be required to implement a CCR

Permit Program for a state if the agency identified some deficiency in that state’s permit program,

and the state does not remedy the deficiency within the “reasonable timeframe” negotiated

between the state and EPA.108 Similarly, if a state governor notifies EPA of the state’s intent not to

implement a CCR Permit Program or the state informs EPA that it will no longer implement its

program, EPA would be required to implement the CCR Permit Program for a state.

This mandate raises two possibilities for EPA. Assuming that EPA has identified a deficiency, one

interpretation of the bills would require EPA to implement the state’s program to regulate CCRs,

except for the deficient component—the agency’s only independent authority being to provide an

adequate substitute for the element it found deficient. The second interpretation, which would

apply both in cases of identified deficiencies and of state decisions not to implement a program at

all, is that EPA could promulgate its own program applicable to CCR disposal units.109 If it did so,

the agency’s regulations would be required to consist of the Permit Program Specifications

proposed at Section 4011(c), as EPA interprets those specifications.110 In addition, the

Administrator could rely on her authority under Section 2002 of RCRA to “prescribe, in

consultation with Federal, State, and regional authorities, such regulations as are necessary to

carry out [her] functions under this Act.”

If EPA were to implement a CCR Permit Program for a state, Section 4011(e) cites existing

provisions in Subtitle D as the authorities the agency would use to implement a CCR Permit

Program.111

107

RCRA provides EPA with broad authority to prescribe regulations as necessary to carry out its function under the

law (42 U.S.C. §6912(a)(1)). It was under that broad authority, coupled with the explicit directive to EPA to determine

the adequacy of state permit programs (42 U.S.C. §6945(c)(1)(C)), that EPA promulgated “Requirements for State

Permit Program Determination of Adequacy” under 40 C.F.R. Part 239. To meet its obligation to identify program

deficiencies, pursuant to the directive in Section 4011(d), EPA may promulgate requirements applicable to adequate

CCR Permit Programs that it could use to identify program deficiencies.

108

Proposed Section 4011(e)(1)(B).

109

In accordance with the directives to EPA to implement a CCR Permit Program for a state, coupled with EPA’s

broad authority to promulgate regulations necessary to carry out its function under RCRA.

110

See proposed Section 4011(e)(4).

111

See proposed Section 4011(e)(5).

Congressional Research Service

Analysis of Recent Proposals to Amend RCRA

A “CCR Permit Program” Compared to

State Programs to Regulate MSW Landfills

The CCR bills in the 112th Congress did not explicitly state that state-implemented CCR Permit

Programs would be intended to emulate (in their broad objectives or in specific program details)

federal-state programs to regulate MSW landfills. Statements in the legislative history, however,

asserted that the bills intended to facilitate the recovery and beneficial use of CCRs by creating a

“state-based permit program that utilizes the framework and requirements of the existing

municipal solid waste landfill permit program as an enforceable minimum federal standard for the

regulation of coal ash.”112

The degree to which states would create, implement, and enforce programs to regulate CCRs that

are similar to programs to implement and enforce regulations applicable to MSW landfills

depends on various factors that cannot be determined in advance. However, certain similarities

and differences can be identified. The similarities between the existing program to regulate MSW

landfills and the proposed CCR program lie primarily in the requirement that a CCR Permit

Program would apply selected MSW landfill criteria to owners and operators of CCR structures.

Proposed CCR Permit Program elements likely to have the most impact on state program

implementation that are different from existing programs to regulate MSW landfills pertain to the

following (each of which is discussed in more detail below):

112

•

The potential flexibility in state program development and

implementation—in the absence of provisions comparable to general regulatory

standards, applicable either to regulations that would be implemented by the

permit program or to the permit program itself, it would appear that each state

could determine key elements related to program implementation (e.g., program

applicability) and facility compliance, at least to the degree that such state

determinations did not undercut a viable state program.

•

A state-determined standard of protection—permit programs were created

previously under RCRA when Congress wanted to ensure that certain solid waste

disposal facilities would be subject to regulatory criteria that achieved a

minimum national standard of protection and that a permit program would be

implemented to assure facility compliance with that standard. The proposed

statutory criteria included among the Permit Program Specifications are not

comparable, in scope or in detail, to those identified by EPA as those necessary to

protect human health from risks specific to CCR disposal and use (in the June

2010 EPA proposal). Absent directives that regulations promulgated and applied

to CCR structures achieve a federal standard of protection, states might

promulgate and implement regulations according to a state-established standard

of protection, which might vary from state to state.

•

EPA’s role in program creation and implementation—EPA would have no

formal role in program development and a limited role in program

implementation. Within the limited conditions and authorities specified, it is

See statement under the “Purpose and Summary” of H.R. 2273 in H.Rept. 112-226.

Congressional Research Service

Analysis of Recent Proposals to Amend RCRA

difficult to determine whether the potential for EPA to implement a CCR Permit

Program for a state would serve as an incentive to states to implement a program

according to the requirements specified in Section 4011.

Flexibility

Section 4011 includes no explicit directive to states or EPA to promulgate regulations applicable

to CCR structures. Instead, the Permit Program Specifications in Section 4011(c) list regulatory

criteria that would be applied by a CCR Permit Program. As a result, Section 4011 includes a

number of provisions susceptible to varying interpretations. One such provision is the definition

of “structures” that may receive CCRs. All Minimum Requirements and Revised Criteria that

must be applied by a CCR Permit Program would be required to apply to “structures.” It would

appear that the applicability of any regulations a state would promulgate and implement using its

permit program would depend on that state’s definition of a structure. In defining the term as a

“landfill, surface impoundment, or other land-based unit” that may receive CCRs,113 without

further definition, the bills would afford states broad latitude in construing these terms.114

By contrast, existing RCRA regulations established by EPA explicitly define terms necessary to

determine the applicability of those regulations. Those definitions have included sufficient detail

to allow a potentially regulated entity (the owner/operator of a particular waste disposal facility)

to determine whether or what regulations may apply to their waste management activities. The

definitions also indicate the type of waste disposal facilities that have been found to pose a risk to

human health if not properly managed (see definitions of terms applicable to waste disposal

facilities included under the “General” standards in the MSW landfill criteria and EPA’s June

2010 Subtitle D proposal listed in Table A-2).

With regard to CCR management, EPA’s proposed definition of “CCR landfill” and “CCR surface

impoundment,” and, hence, the applicability of its proposed Subtitle D standards, reflects the

agency’s assessment of risks to human health from the disposal of CCRs. Details in EPA’s

proposed definitions of potentially regulated units reflect risk assessment data and documented

cases of threats to human health from CCR disposal in surface impoundments and landfills, as

well as certain uses comparable to landfill disposal (e.g., placement on land for large-scale fill).

EPA’s June 2010 proposal reflected its assessment of this body of research and analysis. Some

stakeholders, however, debate the appropriateness of EPA’s definitions, with some arguing that

EPA’s definitions are too inclusive and others believing they are not inclusive enough.

While there may be debate among stakeholders regarding the appropriateness of EPA’s

definitions, the bills leave that issue unresolved, opening the door to a diversity of state solutions.

Until states promulgate regulations that include a more detailed definition of a CCR “structure,”

program applicability will not be determined with specificity. Thus, the regulated universe of

“owners and operators” will not be known until a state defines a structure.115

113

Proposed Section 4011(k)(6).

EPA could potentially issue guidance to clarify the terms or define them in regulations that the agency might

promulgate as necessary under Section 4011(e) provisions pertaining to program administration by EPA. (Under

certain conditions, the courts could also clarify the terms. For legal analysis, contact the Congressional Research

Service, American Law Division, at 7-.....) However, whether EPA would do so, and the degree to which states may

adopt those standards, cannot be determined.

115

Under the proposed bills, the agency responsible for implementing the CCR Permit Program would be obligated to

(continued...)

114

Congressional Research Service

Analysis of Recent Proposals to Amend RCRA

Section 4011 also omits other basic program elements typically specified in regulations. For

example, it would not provide explicit deadlines for many program requirements, though EPA or

the courts might read reasonable deadlines into the section. Certain deadlines are specified in the

Permit Program Specifications. For example, not later than one year after the state certifies it has

a program in place, that state shall require the owner or operator of each regulated structure to

comply with applicable groundwater monitoring requirements promulgated by the state.116 As

noted above, however, the applicability of those groundwater monitoring requirements would

depend on the state’s definition of a structure.

After states promulgate regulations implementing the Section 4011 requirements and permit

programs are in place, among other program elements, it could then be determined117

•

whether states would uniformly apply permit program conditions to all CCR

landfills and surface impoundments within the state’s jurisdiction;

•

when owners and operators of existing CCR structures would be required to

obtain a permit and operate in accordance with permit conditions; or

•

whether CCRs used as fill material (a use EPA identified as similar to landfill

disposal) would be subject to permitting.

The absence of certain requirements among the Permit Program Specifications (e.g., compliance

deadlines) does not mean that states would not establish those criteria in their own regulations

applicable to CCR structures. However, given the flexibility that states would have to define

several key program elements, it cannot be predicted whether state programs to regulate CCRs,

developed and implemented pursuant to provisions in Section 4011, would result in the

management of CCRs comparable to the existing programs to regulate MSW landfills.

The majority of the Permit Program Specifications are criteria that would be applied by the

permit program (i.e., provisions related to regulations that may ultimately be promulgated by the

state and implemented via the permit program). There are few provisions in Section 4011 that

specify required elements of the permit program itself118 (see requirements in 40 C.F.R. Part 239

compared to provisions in Section 4011 apparently drawn from those requirements, listed in

Table B-1).

The absence of certain provisions in Section 4011 comparable to requirements relevant to existing

state programs to regulate MSW landfills (primarily criteria comparable to the general standards

in 40 C.F.R. Part 258 and detailed requirements comparable to those in 40 C.F.R. Part 239) may

be based on a belief among some that states that maintain approved permit programs under

Subtitles C or D of RCRA have adequately demonstrated that they are capable of administering a

(...continued)

require owners and operators of structures that receive CCRs after the date of enactment of the proposed amendment to

RCRA to apply for and obtain a permit incorporating the requirements of the CCR Permit Program. See proposed

Section 4011(c)(1)(E).

116

Pursuant to proposed Section 4011(c)(1)(F)(ii).

117

In states that currently regulate CCR disposal units under their existing waste management program, these issues

may be determined prior to the adoption of regulations necessary to implement provisions in the proposed Section

4011.

118

See previous discussion in “State Programs to Implement the MSW Landfill Criteria.”

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Analysis of Recent Proposals to Amend RCRA

permit program to regulate CCRs.119 EPA has not questioned whether states are capable of

implementing programs to regulate CCR disposal. Instead, the agency has noted that some states

do not currently have effective regulatory or permitting programs to manage CCR disposal and

use (particularly with regard to the management of CCRs in surface impoundments and uses

comparable to landfilling).120 It is not necessarily a question of a state’s ability. Instead, it may be

a difference in interpretation between states and EPA regarding standards necessary to ensure

protection of human health. Also, whether a state has an approved MSW permit program intended

to ensure compliance with the MSW landfill regulations may not be a reliable predictor of

whether a state would amend its current laws or adapt its procedures to apply those requirements

to the management and disposal of CCRs in structures in that state.

Standard of Protection

All existing regulations applicable to waste disposal facilities, promulgated under RCRA Subtitles

C or D, were established pursuant to explicit directives from Congress that those regulations meet

a particular standard of protection. When those regulations are required to be implemented using

a permit program, at a minimum, the regulations were required to be those necessary to “protect

human health and the environment.” That generally is understood to mean regulatory criteria

necessary to ensure that toxic constituents likely present in a waste, disposed of under certain

conditions, will not degrade, migrate off-site, and expose humans to those constituents above

levels determined to be toxic to humans (e.g., above maximum contaminant levels established

under the Safe Drinking Water Act).

There is no provision in Section 4011 that explicitly requires regulations promulgated by the state

and implemented by a CCR Permit Program to achieve a certain level of protection. Within the

framework of RCRA, that raises the question of what changes may occur to existing state waste

management programs in a state that believes it is currently regulating CCR disposal in a way that

is adequate to protect human health.

Although there is no statement to this effect in the proposed bills themselves, it appears that the

achievement of a level of protection comparable to that in RCRA was considered when applying

the “revised criteria” to the proposed permit program under Section 4011. In particular, the House

report for H.R. 2273 includes the following statement:

The Committee believes that it is not necessary for EPA to promulgate new regulations. EPA

acknowledged in [its June 2010 Subtitle D] Proposed Rule that the “part 258 criteria

represent a reasonable balance between ensuring the protection of human health and the

environment from the risks of these wastes and the practical realities of facilities’ ability to

implement the criteria.” The Committee expects that permit programs using the minimum

119

See statements included in the “Section-by-Section” analysis of H.R. 2273 in H.Rept. 112-226 with regard to

proposed Section 4011(b)(3). See specifically the statement: “The Committee believes that States that are approved

under 4005(c) or authorized by 3006 have established sufficient evidence of their capability to implement a permit

program.”

120

See EPA’s June 2010 proposal at 75 Federal Register 35128, at 35150. Also see discussion in “EPA Proposals to

Regulate the Disposal of CCRs” regarding possible gaps in state programs to regulate CCRs as one of the primary

issues that led EPA to conclude that national standards to regulate the management of CCRs are warranted; and

information regarding directives in the Bevill Amendment and EPA’s response to those directives in Appendix C.

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Analysis of Recent Proposals to Amend RCRA

Federal baseline established by this legislation will meet the standard of protecting human

health and the environment.121

The House report further notes that the “revised criteria” that would serve as the baseline for the

proposed CCR Permit Programs consist of criteria that EPA promulgated pursuant to Section

4010(c) of RCRA that require EPA to promulgate criteria necessary to protect human health and

the environment. That is, by using the MSW landfill criteria as the basis of the program, it may be

expected that state implementation of a CCR Permit Program that applies those criteria would

protect human health and the environment. There is no legislative history for the Senate-proposed

bill. However, since it also uses the MSW landfill criteria as its framework, there may have been

a similar expectation that the use of those criteria would create a permit program that would meet

a similar standard of protection.

The MSW landfill criteria provide minimum national regulatory standards to ensure protection of

human health, but from risks associated with the management of MSW landfills, not risks

associated with CCR structures, particularly not risks specific to CCR accumulation in surface

impoundment ponds or uses that are largely similar to disposal in a landfill (its use as structural

fill in large-scale construction projects). Further, in its June 2010 proposal, EPA did not use the

MSW landfill criteria, alone, to provide a similar level of protection for the disposal of CCRs in

landfills and surface impoundments. EPA used the MSW landfill criteria as the framework for its

June 2010 Subtitle D proposal. However, to meet the necessary standard of protection required

under RCRA, and to address risks identified by EPA in the statutory directive included in the

Bevill amendment provisions (Appendix C), EPA’s proposal included detailed criteria necessary

to address risks associated with the disposal of dry CCRs in a landfill (defined to include largescale fill operations) and liquid slurry in surface impoundments (a category of disposal unit

explicitly excluded from the definition of MSW landfills).

As noted in the “Provisions Relevant to Potential State CCR Permit Programs” section, in

addition to selected MSW landfill criteria, the proposed Permit Program Specifications include

five provisions that appear to be drawn from EPA’s proposed standards applicable to CCR

disposal units.122 Those provisions are not, however, comparable in scope or in detail to the

regulatory criteria proposed by EPA under its June 2010 Subtitle D regulatory option.123 Still,

since selected provisions in the bills are drawn from EPA’s June 2010 proposal, it appears that a

CCR Permit Program would be intended to address certain risks associated with CCR disposal.

However, by drawing from selected standards proposed by EPA, but not others, and allowing

states flexibility to define what constitutes a CCR landfill or surface impoundment, it is unclear

whether individual state CCR Permit Programs would address the same range of risks identified

by EPA.

121

See H.Rept. 112-226 “Section-by-Section Analysis of the Legislation,” pertaining to the definition of “revised

criteria” in proposed Section 4011(k).

122

See provisions listed under the Minimum Requirements in proposed Section 4011(c)(1) related to “Structural

Integrity” (proposed paragraph (B)); “Location” (proposed paragraph (C)); “Wind Dispersal” (proposed paragraph

(D)); “State Notification and Groundwater Monitoring” (proposed paragraph (F)); and “Requirements for Surface

Impoundments That Do Not Meet Certain Criteria” (proposed paragraph (J)).

123

The scope of EPA’s proposed standards can be seen by comparing the existing MSW landfill criteria to EPA’s

proposed Subtitle D standards to regulate CCR landfills and surface impoundments, listed in Table A-2; for an

example of the detail found in EPA’s proposed regulations compared to the proposed provisions in Section 4011, see

the regulatory criteria that would apply to existing CCR surface impoundments, listed in Table A-3, compared to

“Structural Integrity” provisions in proposed Section 4011(c)(1)(B).

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Analysis of Recent Proposals to Amend RCRA

The absence of any explicit directive that the CCR Permit Program or state regulations applied by

that program meet a standard of protection does not mean that a state would not require its

program to achieve a state-specific standard of protection. However, when permit programs have

been required to be implemented under RCRA in the past, it has been with the specific intent of

assuring that waste disposal facilities will operate in compliance with baseline federal regulatory

criteria that meet an explicit standard of protection. Those existing federal criteria were designed

to address gaps in the protection of human health that may occur as a result of gaps in state

regulatory programs. In its June 2010 proposal, EPA’s primary objective was to address gaps in

state programs to regulate CCRs by establishing national standards that would achieve a

minimum level of protection from risks specific to CCR disposal and use.

Generally, it would be during the rulemaking process, under the Administrative Procedure Act,124

that EPA would provide its analysis of risk assessment data, studies, reports, and various other

data used to determine regulatory criteria that it (EPA, in conjunction with state agencies and

other interested stakeholders) determined are those necessary to achieve a certain national

standard of protection. In its proposal to regulate CCRs, various stakeholders have disagreed with

EPA’s assessment of what criteria should be applied to CCRs. The administrative process,

however, provides some transparency regarding how EPA arrived at its determination. It also

provides a forum through which stakeholders can provide their views and supplement data EPA

may draw from to form a final decision. The analytical process and technical basis for

determining how and why certain requirements were selected or excluded (primarily those found

in 4011(c)) in the proposed CCR Permit Program are not clear.

Questions regarding the potential standard of protection intended to be achieved by state

programs to regulate CCRs are also raised when the purpose of existing state programs to

regulate MSW landfills is compared to the purpose of the proposed CCR Permit Program. Under

Subtitle D, states were required to adopt and implement a permit program to ensure that each

solid waste management facility in the state that may receive MSW would comply with the MSW

landfill criteria.125 EPA defined those state programs as the “authorities, activities, and procedures

that comprise the state’s system of prior approval and conditions for regulating the location,

design, operation, ground-water monitoring, closure, post-closure care, corrective action, and

financial assurance of Subtitle D regulated facilities” (i.e., a program to implement the MSW

landfill criteria).126 Given the standard of protection the MSW landfill criteria were required to

achieve,127 state programs implementing the MSW landfill criteria would ensure facility

compliance requirements designed to protect human health.

In contrast to that existing RCRA program, the preamble in the proposed bills broadly states that

the amendment to RCRA is to “facilitate recovery and beneficial use, and provide for the proper

management and disposal” of CCRs. Further, a “coal combustion residuals permit program”

would be defined as “all authorities, activities, and procedures that comprise the system of prior

approval and conditions implemented by a state to regulate the management and disposal” of

CCRs [emphasis added].128 In contrast to the existing programs to regulate MSW landfills, that

124

See CRS Report RL32240, The Federal Rulemaking Process: An Overview, coordinated by (name redacted).

42 U.S.C. §6945(c)(1)(B); solid waste management facilities “that may receive hazardous household waste,” as they

are referred to in this provision, were subsequently referred to as municipal solid waste landfills in 40 C.F.R. Part 258.

126

40 C.F.R. §239.2(b).

127

Specified in 42 U.S.C. §6949a(c).

128

See proposed Section 4011(k).

125

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Analysis of Recent Proposals to Amend RCRA

proposed program would not be explicitly required to ensure facility compliance with regulations

that meet a baseline standard of protection. Although it could be assumed that any state permit

program would be used to implement certain regulatory requirements, it could not be assumed

that the purpose of those requirements would be to achieve a particular standard of protection.

Further, until states begin to adopt and implement CCR Permit Programs, it cannot be determined

whether states would interpret provisions in Section 4011 to mean that their programs would be

required to ensure facility compliance with requirements that meet a particular standard of

protection.

EPA’s Role

In the bills, EPA’s role in program development and oversight would be substantially different

from the agency’s role in other permit programs established under RCRA. EPA would be given a

more limited role in development of the regulatory program for CCR facilities, compared to the

existing program to regulate MSW landfills. Compared to that program, the most significant

differences in EPA’s role are with regard to promulgating regulations applicable to the entity

required to obtain a permit, assessing state permit programs, and the potentia

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