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

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URL: https://www.frixlaw.com/law-library/documents/crs%3AR43003

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** March 19, 2013
- **Citation:** R43003

## Text

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.,

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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.

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

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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
1
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.
2
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.
3
42 U.S.C. §6949a(c)(1).

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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
4

In proposed Section 4011(c).
Defined in proposed Section 4011(k).
6
40 C.F.R. Part 258.
7
To the extent that detail regarding the bills is discussed, provisions in the Senate-proposed bill will be cited. Since
(continued...)
5

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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.
8
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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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

9

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.
10
42 U.S.C. §6945(a).
11
42 U.S.C. §6949a(c)(1).
12
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).
13
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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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
14

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).
15
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.
16
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-.....
17
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).
18
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.
19
As allowed at 42 U.S.C. §6945(c)(2).

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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
20
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.
21
See statements included in the “Purpose and Summary” section of H.Rept. 112-226.
22
At proposed Section 4011(c)(1)(A).
23
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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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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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.
24

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).
26
See proposed Section 4011(d)(1)(D)(i) and 4011(d)(3)(A)(iv).
27
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-.....
25

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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
28

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).
30
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).
31
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...)
29

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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).
32
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.
33
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.
34
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.
35
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.
36
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.

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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
37

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.).
38
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.
39
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).

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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.

40
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.)

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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).

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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
41

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.
43
See discussion in Appendix A.
44
Provisions in proposed Section 4011(c).
45
Proposed Section 4011(c)(1)(A).
46
See footnote 23.
42

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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
47

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.
48
See 40 C.F.R. §258.1(a).

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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
49

That program certification would be required to provide information specified in the “State Actions” provisions in
proposed Section 4011(b)(2).
50
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.
51
Specified at 42 U.S.C. §6912(a)(1).

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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.

52

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).
53

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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
54

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).
55
See “Adequacy of Certain Guidelines and Criteria” at 42 U.S.C. §6949a.
56
42 U.S.C. §6949a(c)(1).
57
42 U.S.C. §6945(c)(1)(B).
58
42 U.S.C. §6945(c)(1)(C).
59
Final rules were promulgated October 9, 1991, in 56 Federal Register 51016.

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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.

60

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.
61

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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

62

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).
63
42 U.S.C. §6945(c).
64
42 U.S.C. §6945(c)(1)(B).
65
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

66

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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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

67

See 42 U.S.C. §6945(c)(2)(A).
See 42 U.S.C. §6945(c)(2)(B).
69
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.
70
See 42 U.S.C. §6945(c)(1)(B).
68

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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
71

The exclusion is specified under 42 U.S.C. §6921(b)(3).
Study criteria are specified at 42 U.S.C. §6982(n).
73
40 C.F.R. §261.11.
72

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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);

74
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.
75
See EPA’s June 2010 proposal at 75 Federal Register 35128, at 35138.
76
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).
77
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.
78
“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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•

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
79
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.
80
Ibid.

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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
81

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.
82
See EPA’s discussion under “1. Regulatory Approach” at 75 Federal Register 35128, at 35193, June 21, 2010.

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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.

83
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.”
84
See proposed 40 C.F.R. Section 257.71, “Design criteria for existing CCR surface impoundments.”
85
See 75 Federal Register 35128, at 35243, June 2010.
86
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)).

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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).
87

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.
88
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.

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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.]

89

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.
91
Proposed Section 4011(c)(1)(A).
90

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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).

92
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 und

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR43003. Public record. Not legal advice.