99–006 

112TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 112–226 

COAL RESIDUALS REUSE AND MANAGEMENT ACT 

SEPTEMBER 26, 2011.—Committed to the Committee of the Whole House on the 

State of the Union and ordered to be printed 

Mr. UPTON, from the Committee on Energy and Commerce, 

submitted the following 

R E P O R T 

together with 

ADDITIONAL VIEWS 

[To accompany H.R. 2273] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Energy and Commerce, to whom was referred 

the bill (H.R. 2273) to amend subtitle D of the Solid Waste Disposal Act to facilitate recovery and beneficial use, and provide for 

the proper management and disposal, of materials generated by the 

combustion of coal and other fossil fuels, having considered the 

same, report favorably thereon with an amendment and recommend that the bill as amended do pass. 

CONTENTS 

Page 

Amendment .............................................................................................................. 2 

Purpose and Summary ............................................................................................ 6 

Background and Need for Legislation .................................................................... 7 

Hearings ................................................................................................................... 7 

Committee Consideration ........................................................................................ 8 

Committee Votes ...................................................................................................... 8 

Committee Oversight Findings ............................................................................... 11 

Statement of General Performance Goals and Objectives .................................... 11 

New Budget Authority, Entitlement Authority, and Tax Expenditures ............. 11 

Earmark, Tax Benefits, Tariff Benefits ................................................................. 11 

Committee Cost Estimate ....................................................................................... 11 

Congressional Budget Office Estimate ................................................................... 11 

Federal Mandates Statement ................................................................................. 14 

Advisory Committee Statement .............................................................................. 14 

Applicability to Legislative Branch ........................................................................ 14 

Section-by-Section Analysis of the Legislation ...................................................... 14 

Changes in Existing Law Made by the Bill, as Reported ..................................... 23 

Additional Views ...................................................................................................... 31 


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AMENDMENT

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Coal Residuals Reuse and Management Act’’. 

SEC. 2. AMENDMENT TO SUBTITLE D OF THE SOLID WASTE DISPOSAL ACT. 

(a) IN GENERAL.—Subtitle D of the Solid Waste Disposal Act (42 U.S.C. 6941 et 

seq.) is amended by adding at the end the following new section: 

‘‘SEC. 4011. MANAGEMENT AND DISPOSAL OF COAL COMBUSTION RESIDUALS. 

‘‘(a) STATE PERMIT PROGRAMS FOR COAL COMBUSTION RESIDUALS.—Each State 

may adopt and implement a coal combustion residuals permit program. 

‘‘(b) STATE ACTIONS.— 

‘‘(1) NOTIFICATION.—Not later than 6 months after the date of enactment of 

this section (except as provided by the deadline identified under subsection 

(d)(2)(B)), the Governor of each State shall notify the Administrator, in writing, 

whether such State will adopt and implement a coal combustion residuals permit program. 

‘‘(2) CERTIFICATION.— 

‘‘(A) IN GENERAL.—Not later than 36 months after the date of enactment 

of this section (except as provided in subsections (f)(1)(A) and (f)(1)(C)), in 

the case of a State that has notified the Administrator that it will implement a coal combustion residuals permit program, the head of the lead 

State agency responsible for implementing the coal combustion residuals 

permit program shall submit to the Administrator a certification that such 

coal combustion residuals permit program meets the specifications described in subsection (c)(1). 

‘‘(B) CONTENTS.—A certification submitted under this paragraph shall include— 

‘‘(i) a letter identifying the lead State agency responsible for implementing the coal combustion residuals permit program, signed by the 

head of such agency; 

‘‘(ii) identification of any other State agencies involved with the implementation of the coal combustion residuals permit program; 

‘‘(iii) a narrative description that provides an explanation of how the 

State will ensure that the coal combustion residuals permit program 

meets the requirements of this section; 

‘‘(iv) a legal certification that the State has, at the time of certification, fully effective statutes, regulations, or guidance necessary to implement a coal combustion residuals permit program that meets the 

specifications described in subsection (c)(1); and 

‘‘(v) copies of State statutes, regulations, and guidance described in 

clause (iv). 

‘‘(3) MAINTENANCE OF 4005(c) OR 3006 PROGRAM.—In order to adopt or implement a coal combustion residuals permit program under this section (including 

pursuant to subsection (f)), the State agency responsible for implementing a coal 

combustion residuals permit program in a State shall maintain an approved 

program under section 4005(c) or an authorized program under section 3006. 

‘‘(c) PERMIT PROGRAM SPECIFICATIONS.— 

‘‘(1) MINIMUM REQUIREMENTS.—The specifications described in this subsection 

for a coal combustion residuals permit program are as follows: 

‘‘(A) The revised criteria described in paragraph (2) shall apply to a coal 

combustion residuals permit program, except as provided in paragraph (3). 

‘‘(B) Each structure shall be, in accordance with generally accepted engineering standards for the structural integrity of such structures, designed, 

constructed, and maintained to provide for containment of the maximum 

volumes of coal combustion residuals appropriate for the structure. If a 

structure is determined by the head of the agency responsible for implementing the coal combustion residuals permit program to be deficient, the 

head of such agency has authority to require action to correct the deficiency. If the identified deficiency is not corrected, the head of such agency 

has authority to require that the structure close in accordance with subsection (h). 

‘‘(C) The coal combustion residuals permit program shall apply the revised criteria promulgated pursuant to section 4010(c) for location, design, 

groundwater monitoring, corrective action, financial assurance, closure and 


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post-closure described in paragraph (2) and the specifications described in 

this paragraph to surface impoundments. 

‘‘(D) Constituents for detection monitoring shall include boron, chloride, 

conductivity, fluoride, pH, sulphate, sulfide, and total dissolved solids. 

‘‘(E) If a structure that is classified as posing a high hazard potential pursuant to the guidelines published by the Federal Emergency Management 

Agency entitled ‘Federal Guidelines for Dam Safety: Hazard Potential Classification System for Dams’ (FEMA Publication Number 333) is determined 

by the head of the agency responsible for implementing the coal combustion 

residuals permit program to be deficient with respect to the structural integrity requirement in subparagraph (B), the head of such agency has authority to require action to correct the deficiency. If the identified deficiency 

is not corrected, the head of such agency has authority to require that the 

structure close in accordance with subsection (h). 

‘‘(F) New structures that first receive coal combustion residuals after the 

date of enactment of this section shall be constructed with a base located 

a minimum of two feet above the upper limit of the natural water table. 

‘‘(G) In the case of a coal combustion residuals permit program implemented by a State, the State has the authority to inspect structures and 

implement and enforce such permit program. 

‘‘(2) REVISED CRITERIA.—The revised criteria described in this paragraph 

are— 

‘‘(A) the revised criteria for design, groundwater monitoring, corrective action, closure, and post-closure, for structures, including— 

‘‘(i) for new structures, and lateral expansions of existing structures, 

that first receive coal combustion residuals after the date of enactment 

of this section, the revised criteria regarding design requirements described in section 258.40 of title 40, Code of Federal Regulations; and 

‘‘(ii) for all structures that receive coal combustion residuals after the 

date of enactment of this section, the revised criteria regarding groundwater monitoring requirements described in subpart E of part 258 of 

title 40, Code of Federal Regulations; 

‘‘(B) the revised criteria for location restrictions described in— 

‘‘(i) for new structures, and lateral expansions of existing structures, 

that first receive coal combustion residuals after the date of enactment 

of this section, sections 258.11 through 258.15 of title 40, Code of Federal Regulations; and 

‘‘(ii) for existing structures that receive coal combustion residuals 

after the date of enactment of this section, sections 258.11 and 258.15 

of title 40, Code of Federal Regulations; 

‘‘(C) for all structures that receive coal combustion residuals after the 

date of enactment of this section, the revised criteria for air quality described in section 258.24 of title 40, Code of Federal Regulations; and 

‘‘(D) for all structures that receive coal combustion residuals after the 

date of enactment of this section, the revised criteria for financial assurance 

described in subpart G of part 258 of title 40, Code of Federal Regulations. 

‘‘(3) APPLICABILITY OF CERTAIN REQUIREMENTS.—A State may determine that 

one or more of the requirements of the revised criteria described in paragraph 

(2) is not needed for the management of coal combustion residuals in that State, 

and may decline to apply such requirement as part of its coal combustion residuals permit program. If a State declines to apply a requirement under this 

paragraph, the State shall include in the certification under subsection (b)(2) a 

description of such requirement and the reasons such requirement is not needed 

in the State. If the Administrator determines that a State determination under 

this paragraph does not accurately reflect the needs for the management of coal 

combustion residuals in the State, the Administrator may treat such State determination as a deficiency under subsection (d). 

‘‘(d) WRITTEN NOTICE AND OPPORTUNITY TO REMEDY.— 

‘‘(1) IN GENERAL.—The Administrator shall provide to a State written notice 

and an opportunity to remedy deficiencies in accordance with paragraph (2) if 

at any time the State— 

‘‘(A) does not satisfy the notification requirement under subsection (b)(1); 

‘‘(B) has not submitted a certification under subsection (b)(2); 

‘‘(C) does not satisfy the maintenance requirement under subsection 

(b)(3); or 

‘‘(D) is not implementing a coal combustion residuals permit program 

that meets the specifications described in subsection (c)(1). 

‘‘(2) CONTENTS OF NOTICE; DEADLINE FOR RESPONSE.—A notice provided under 

this subsection shall— 


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‘‘(A) include findings of the Administrator detailing any applicable deficiencies in— 

‘‘(i) compliance by the State with the notification requirement under 

subsection (b)(1); 

‘‘(ii) compliance by the State with the certification requirement under 

subsection (b)(2); 

‘‘(iii) compliance by the State with the maintenance requirement 

under subsection (b)(3); and 

‘‘(iv) the State coal combustion residuals permit program in meeting 

the specifications described in subsection (c)(1); and 

‘‘(B) identify, in collaboration with the State, a reasonable deadline, which 

shall be not sooner than 6 months after the State receives the notice, by 

which the State shall remedy the deficiencies detailed under subparagraph 

(A). 

‘‘(e) IMPLEMENTATION BY ADMINISTRATOR.— ‘‘(1) IN GENERAL.—The Administrator shall implement a coal combustion residuals permit program for a State only in the following circumstances: 

‘‘(A) If the Governor of such State notifies the Administrator under subsection (b)(1) that such State will not adopt and implement such a permit 

program. 

‘‘(B) If such State has received a notice under subsection (d) and, after 

any review brought by the State under section 7006, fails, by the deadline 

identified in such notice under subsection (d)(2)(B), to remedy the deficiencies detailed in such notice under subsection (d)(2)(A). 

‘‘(C) If such State informs the Administrator, in writing, that such State 

will no longer implement such a permit program. 

‘‘(2) REQUIREMENTS.—If the Administrator implements a coal combustion residuals permit program for a State under paragraph (1), such permit program 

shall consist of the specifications described in subsection (c)(1). 

‘‘(3) ENFORCEMENT.—If the Administrator implements a coal combustion residuals permit program for a State under paragraph (1), the authorities referred 

to in section 4005(c)(2)(A) shall apply with respect to coal combustion residuals 

and structures and the Administrator may use such authorities to inspect, gather information, and enforce the requirements of this section in the State. 

‘‘(f) STATE CONTROL AFTER IMPLEMENTATION BY ADMINISTRATOR.— 

‘‘(1) STATE CONTROL.— 

‘‘(A) NEW ADOPTION AND IMPLEMENTATION BY STATE.—For a State for 

which the Administrator is implementing a coal combustion residuals permit program under subsection (e)(1)(A), the State may adopt and implement 

such a permit program by— 

‘‘(i) notifying the Administrator that the State will adopt and implement such a permit program; 

‘‘(ii) not later than 6 months after the date of such notification, submitting to the Administrator a certification under subsection (b)(2); and 

‘‘(iii) receiving from the Administrator— 

‘‘(I) a determination that the State coal combustion residuals permit program meets the specifications described in subsection (c)(1); 

and 

‘‘(II) a timeline for transition of control of the coal combustion residuals permit program. 

‘‘(B) REMEDYING DEFICIENT PERMIT PROGRAM.—For a State for which the 

Administrator is implementing a coal combustion residuals permit program 

under subsection (e)(1)(B), the State may adopt and implement such a permit program by— 

‘‘(i) remedying the deficiencies detailed in the notice provided under 

subsection (d)(2)(A); and 

‘‘(ii) receiving from the Administrator— 

‘‘(I) a determination that the deficiencies detailed in such notice 

have been remedied; and 

‘‘(II) a timeline for transition of control of the coal combustion residuals permit program. 

‘‘(C) RESUMPTION OF IMPLEMENTATION BY STATE.—For a State for which 

the Administrator is implementing a coal combustion residuals permit program under subsection (e)(1)(C), the State may adopt and implement such 

a permit program by— 

‘‘(i) notifying the Administrator that the State will adopt and implement such a permit program; 

‘‘(ii) not later than 6 months after the date of such notification, submitting to the Administrator a certification under subsection (b)(2); and 


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‘‘(iii) receiving from the Administrator— 

‘‘(I) a determination that the State coal combustion residuals permit program meets the specifications described in subsection (c)(1); 

and 

‘‘(II) a timeline for transition of control of the coal combustion residuals permit program. 

‘‘(2) REVIEW OF DETERMINATION.— 

‘‘(A) DETERMINATION REQUIRED.—The Administrator shall make a determination under paragraph (1) not later than 90 days after the date on 

which the State submits a certification under paragraph (1)(A)(ii) or 

(1)(C)(ii), or notifies the Administrator that the deficiencies have been remedied pursuant to paragraph (1)(B)(i), as applicable. 

‘‘(B) REVIEW.—A State may obtain a review of a determination by the Administrator under paragraph (1) as if such determination was a final regulation for purposes of section 7006. 

‘‘(3) IMPLEMENTATION DURING TRANSITION.— 

‘‘(A) EFFECT ON ACTIONS AND ORDERS.—Actions taken or orders issued 

pursuant to a coal combustion residuals permit program shall remain in effect if— 

‘‘(i) a State takes control of its coal combustion residuals permit program from the Administrator under paragraph (1); or 

‘‘(ii) the Administrator takes control of a coal combustion residuals 

permit program from a State under subsection (e). 

‘‘(B) CHANGE IN REQUIREMENTS.—Subparagraph (A) shall apply to such 

actions and orders until such time as the Administrator or the head of the 

lead State agency responsible for implementing the coal combustion residuals permit program, as applicable— 

‘‘(i) implements changes to the requirements of the coal combustion 

residuals permit program with respect to the basis for the action or 

order; or 

‘‘(ii) certifies the completion of a corrective action that is the subject 

of the action or order. 

‘‘(4) SINGLE PERMIT PROGRAM.—If a State adopts and implements a coal combustion residuals permit program under this subsection, the Administrator shall 

cease to implement the permit program implemented under subsection (e) for 

such State. 

‘‘(g) EFFECT ON DETERMINATION UNDER 4005(C) OR 3006.—The Administrator 

shall not consider the implementation of a coal combustion residuals permit program by the Administrator under subsection (e) in making a determination of approval for a permit program or other system of prior approval and conditions under 

section 4005(c) or of authorization for a program under section 3006. 

‘‘(h) CLOSURE.—If it is determined, pursuant to a coal combustion residuals permit 

program, that a structure should close, the time period and method for the closure 

of such structure shall be set forth, in a schedule, in a closure plan that takes into 

account the nature and the site-specific characteristics of the structure to be closed. 

In the case of a surface impoundment, the closure plan shall require, at a minimum, 

the removal of liquid and the stabilization of remaining waste, as necessary to support the final cover. 

‘‘(i) AUTHORITY.— 

‘‘(1) STATE AUTHORITY.—Nothing in this section shall preclude or deny any 

right of any State to adopt or enforce any regulation or requirement respecting 

coal combustion residuals that is more stringent or broader in scope than a regulation or requirement under this section. 

‘‘(2) AUTHORITY OF THE ADMINISTRATOR.— 

‘‘(A) IN GENERAL.—Except as provided in subsection (e) of this section and 

section 6005 of this title, the Administrator shall, with respect to the regulation of coal combustion residuals, defer to the States pursuant to this section. 

‘‘(B) IMMINENT HAZARD.—Nothing in this section shall be construed to affect the authority of the Administrator under section 7003 with respect to 

coal combustion residuals. 

‘‘(j) MINE RECLAMATION ACTIVITIES.—A coal combustion residuals permit program 

implemented under subsection (e) by the Administrator shall not apply to the utilization, placement, and storage of coal combustion residuals at surface mining and 

reclamation operations. 

‘‘(k) DEFINITIONS.—In this section: 

‘‘(1) COAL COMBUSTION RESIDUALS.—The term ‘coal combustion residuals’ 

means— 


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‘‘(A) the solid wastes listed in section 3001(b)(3)(A)(i), including recoverable materials from such wastes; 

‘‘(B) coal combustion wastes that are co-managed with wastes produced 

in conjunction with the combustion of coal, provided that such wastes are 

not segregated and disposed of separately from the coal combustion wastes 

and comprise a relatively small proportion of the total wastes being disposed in the structure; 

‘‘(C) fluidized bed combustion wastes; 

‘‘(D) wastes from the co-burning of coal with non-hazardous secondary 

materials provided that coal makes up at least 50 percent of the total fuel 

burned; and 

‘‘(E) wastes from the co-burning of coal with materials described in subparagraph (A) that are recovered from monofills. 

‘‘(2) COAL COMBUSTION RESIDUALS PERMIT PROGRAM.—The term ‘coal combustion residuals permit program’ means a permit program or other system of prior 

approval and conditions that is adopted by or for a State for the management 

and disposal of coal combustion residuals to the extent such activities occur in 

structures in such State. 

‘‘(3) STRUCTURE.—The term ‘structure’ means a landfill, surface impoundment, or other land-based unit which may receive coal combustion residuals. 

‘‘(4) REVISED CRITERIA.—The term ‘revised criteria’ means the criteria promulgated for municipal solid waste landfill units under section 4004(a) and under 

section 1008(a)(3), as revised under section 4010(c).’’. 

(b) CONFORMING AMENDMENT.—The table of contents contained in section 1001 of 

the Solid Waste Disposal Act is amended by inserting after the item relating to section 4010 the following: 

‘‘Sec. 4011. Management and disposal of coal combustion residuals.’’. 

SEC. 3. 2000 REGULATORY DETERMINATION. 

Nothing in this Act, or the amendments made by this Act, shall be construed to 

alter in any manner the Environmental Protection Agency’s regulatory determination entitled ‘‘Notice of Regulatory Determination on Wastes from the Combustion 

of Fossil Fuels’’, published at 65 Fed. Reg. 32214 (May 22, 2000), that the fossil fuel 

combustion wastes addressed in that determination do not warrant regulation under 

subtitle C of the Solid Waste Disposal Act (42 U.S.C. 6921 et seq.). 

PURPOSE AND SUMMARY

This legislation is intended to facilitate recovery and beneficial 

use, and provide for the proper management and disposal, of materials generated by the combustion of coal and other fossil fuels. 

H.R. 2273 facilitates the recovery and beneficial use of coal combustion residuals by creating a State-based permit program that 

utilizes the framework and requirements of the existing municipal 

solid waste landfill permit program as an enforceable minimum 

Federal standard for the regulation of coal ash. The legislation allows States to be more stringent and require criteria in addition to 

the minimum specifications in the bill. 

H.R. 2273 gives States with solid waste permit programs already 

approved under the Solid Waste Disposal Act the option to also 

adopt and implement a coal combustion residuals permit program 

(permit program). A State that intends to implement a permit 

program must notify the Administrator of the Environmental Protection Agency (EPA or the Administrator) of its intent and must 

certify to EPA that its permit program meets the minimum specifications set out in the legislation. The minimum specifications for 

a permit program are drawn from the revised criteria promulgated 

by EPA for the municipal solid waste program, published in Title 

40, Part 258 of the Code of Federal Regulations. Should a State decide not to adopt and implement a permit program, to not continue 

to implement a permit program, or simply fail to implement a permit program, EPA would begin a process that involves notifying 

the State of any alleged deficiencies in the State’s program and alVerDate Mar 15 2010 05:26 Sep 28, 2011 Jkt 099006 PO 00000 Frm 00006 Fmt 6659 Sfmt 6602 E:\HR\OC\HR226.XXX HR226

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lowing the State to refute the allegation or cure any deficiencies. 

If a State fails to remedy any deficiencies, the Administrator, using 

the minimum specifications for a permit program, set out in subsection (c) of the bill, would be authorized to assume control of a 

permit program in that State. The legislation also provides a mechanism for a State that has ceded control of its permit program to 

EPA to take back the permit program by demonstrating that its 

program complies with the legislation’s minimum specifications. 

The legislation ensures that there will never be simultaneous regulatory programs for managing coal combustion residuals in a 

State—either the State or EPA will manage the program, but never 

both at the same time. 

BACKGROUND AND NEED FOR LEGISLATION

On June 21, 2010, EPA promulgated a proposed rule (75 Fed. 

Reg. 35128) (the Proposed Rule) that set out three regulatory options for management of coal combustion residuals. The first is regulation of coal combustion residuals under Subtitle C of the Solid 

Waste Disposal Act (also known as the Resource Conservation and 

Recovery Act or RCRA), which regulates hazardous waste. Many 

believe that EPA’s proposal to regulate combustion residuals under 

Subtitle C of the Solid Waste Disposal Act would place an unwarranted stigma on coal combustion residuals and threaten their beneficial reuse. The second and third regulatory options are to regulate coal combustion residuals under Subtitle D of the Solid Waste 

Disposal Act; the second would phase out the use of surface impoundments using retroactive siting and design requirements, and 

the third proposal would allow surface impoundments to operate 

until the end of their useful life. Stakeholders raised concerns that 

the Subtitle D proposals would lead to unwarranted, automatic closure of surface impoundments, significant job loss, and higher costs 

for energy generation. 

HEARINGS

On April 14, 2011, the Subcommittee on Environment and the 

Economy held a legislative hearing on H.R. 1391, the Recycling 

Coal Combustion Residuals Accessibility Act of 2011, the precursor 

to H.R. 2273. H.R. 1391 prohibited EPA from regulating coal combustion residuals under Subtitle C of the Solid Waste Disposal Act. 

At the April 14, 2011, hearing, the Subcommittee received testimony from: The Honorable Mathy Stanislaus, Assistant Administrator for Office of Solid Waste and Emergency Response, United 

States Environmental Protection Agency; Ms. Mary Zdanowicz, Executive Director, Association of State & Territorial Solid Waste 

Management Officials; Mr. Thomas Adams, Executive Director, the 

American Coal Ash Association; Ms. Ari Lewis, Senior Environmental Toxicologist, Gradient; Ms. Dawn Santoianni, Senior Quality Engineer, Veritas Economic Consulting, LLC; Ms. Lisa Evans, 

Senior Administrative Counsel, Earthjustice; and Mr. Curtis Havens, a citizen of Chester, West Virginia. Several witnesses focused 

on why regulation of coal combustion residuals under Subtitle C of 

RCRA is inappropriate, harmful to the economy, and would have 

a negative impact on jobs. Testimony also addressed the stigma of 

a designation of coal combustion residuals as ‘‘hazardous’’ and how 


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even a proposed rule suggesting coal combustion residuals are 

‘‘hazardous’’ has already and will continue to significantly impair 

recycling and beneficial use of coal combustion residuals. Testimony noted that States already regulate coal combustion residuals, 

scientific data do not support regulation of coal combustion residuals under Subtitle C of RCRA, and that coal combustion residuals 

routinely fail to meet the criteria for regulation as a hazardous 

waste. Witnesses also testified on how significant an impact a Subtitle C designation would have on landfill disposal capacity and 

State solid waste program resources because coal ash is the second 

largest waste stream in the country. Other testimony criticized current State regulation of coal combustion residuals because States 

do not require composite liners, fugitive dust controls, groundwater 

monitoring, and financial assurance and because the structural stability of units for the management and disposal of coal combustion 

residuals are not routinely inspected. 

COMMITTEE CONSIDERATION

On April 6, 2011, Representative David McKinley, together with 

other members, introduced H.R. 1391, the Recycling Coal Combustion Residuals Accessibility Act of 2011. On June 16, 2011, the 

Subcommittee on Environment and the Economy met in open 

markup session to consider H.R. 1391. The bill was not called up, 

and the Subcommittee immediately recessed. On June 21, 2011, 

the Subcommittee reconvened and forwarded a discussion draft, 

without amendment, to the Full Committee for consideration. During the Subcommittee markup, three amendments were offered, 

but not adopted. 

On June 22, 2011 Representative David McKinley, together with 

other members, introduced the discussion draft as H.R. 2273. 

On July 11, 2011, July 12, 2011, and July 13, 2011, the full Committee on Energy and Commerce met in open markup session and 

considered H.R. 2273. During the markup, Mr. Shimkus offered an 

amendment in the nature of a substitute. There were five amendments offered to the amendment in the nature of a substitute, 

which were not adopted. Mr. Shimkus then withdrew his amendment in the nature of a substitute and offered another amendment 

in the nature of a substitute, which was adopted by voice vote. On 

July 13, 2011, by a recorded vote of 35–12, the Committee ordered 

H.R. 2273, as amended, favorably reported for House consideration. 

COMMITTEE VOTES

Clause 3(b) of rule XIII of the Rules of the House of Representatives requires the Committee to list the recorded votes on the motion to report legislation and amendments thereto. There were two 

recorded votes taken in connection with ordering H.R. 2273 reported. A motion by the Chair to order H.R. 2273, as amended, reported to the House was agreed to by a recorded vote of 35–12. 


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COMMITTEE OVERSIGHT FINDINGS

Pursuant to clause 3(c)(1) of rule XIII of the Rules of the House 

of Representatives, the Committee held a legislative hearing on 

April 14, 2011, and made findings that are reflected in this report. 

STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

The goal and objective of H.R. 2273 is to create a state-based regulatory program for coal combustion residuals under Subtitle D of 

the Solid Waste Disposal Act. 

NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND

TAX EXPENDITURES

In compliance with clause 3(c)(2) of rule XIII of the Rules of the 

House of Representatives, the Committee finds that H.R. 2273, the 

Coal Residuals Reuse and Management Act, would result in no new 

or increased budget authority, entitlement authority, or tax expenditures or revenues. 

EARMARK

In compliance with clause 9(e), 9(f), and 9(g) of rule XXI, the 

Committee finds that H.R. 2273 contains no earmarks, limited tax 

benefits, or limited tariff benefits. 

COMMITTEE COST ESTIMATE

The Committee believes that the adoption of this legislation will 

result in no significant impact to federal spending. 

The Congressional Budget Office (CBO) estimates that the workload cost to the United States in the fifth year after enactment 

could exceed $500,000. CBO assumes that EPA would need to investigate certain State permit programs and that the cost of doing 

so could range from $1 million to $2 million. CBO suggests that 

such reviews would be initiated by a petition from a non-governmental environmental advocacy organization or other interested 

party. This assumes that within 5 years of enactment, a number 

of states will fail to implement permit programs and that this programmatic failure will be so patent and serious that it will require 

significant EPA resources to investigate. 

In the Committee’s view, allegations that States are failing to 

implement an otherwise facially adequate permit program would 

not be ripe soon enough to trigger $500,000 or more of EPA’s workload as early as 2016. However, the Committee agrees with CBO 

that EPA workload resulting from this bill will cost less than 

$500,000 in each of the first 4 years after enactment. The Committee also agrees with CBO that the cost to the States and the 

private sector will be well below the thresholds established for 

intergovernmental mandates or private sector mandates as defined 

in the Unfunded Mandates Reform Act. 

CONGRESSIONAL BUDGET OFFICE ESTIMATE

Pursuant to clause 3(c)(3) of rule XIII of the Rules of the House 

of Representatives, the following is the cost estimate provided by 


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the Congressional Budget Office pursuant to section 402 of the 

Congressional Budget Act of 1974: 

AUGUST 1, 2011. 

Hon. FRED UPTON, 

Chairman, Committee on Energy and Commerce, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 2273, the Coal Residuals 

Reuse and Management Act of 2011. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Susanne S. Mehlman. 

Sincerely, 

DOUGLAS W. ELMENDORF. 

Enclosure. 

H.R. 2273—Coal Residuals Reuse and Management Act of 2011 

Summary: H.R. 2273 would provide for the management and disposal of coal combustion residuals (CCR) under subtitle D of the 

Solid Waste Disposal Act, also known as the Resource Conservation 

and Recovery Act (RCRA). (CCR consists of inorganic residues that 

remain after pulverized coal is burned.) Consistent with subtitle D 

of RCRA, this legislation would allow states to create and enforce 

their own CCR permit programs while providing the Environmental Protection Agency (EPA) with limited authority to review 

states’ permit programs. However, H.R. 2273 would enable EPA to 

directly regulate CCR in states that fail to set up their own programs or in states where the permit program is determined to be 

deficient and is not subsequently remedied by the state. 

CBO estimates that enacting this legislation would cost $2 million over the 2012–2016 period, subject to the availability of appropriated funds. Enacting H.R. 2273 would not affect direct spending 

or revenues; therefore, pay-as-you-go procedures do not apply. 

H.R. 2273 would impose an intergovernmental mandate, as defined in the Unfunded Mandates Reform Act (UMRA), by requiring 

states to notify EPA whether they will adopt and implement a CCR 

permit program. CBO estimates that the cost of that mandate 

would fall well below the annual threshold established in UMRA 

($71 million in 2011, adjusted annually for inflation). 

H.R. 2273 contains no private-sector mandates as defined in 

UMRA. 

Estimated cost to the Federal Government: CBO estimates that 

implementing H.R. 2273 would cost EPA $2 million over the next 

five years. The costs of this legislation fall within budget function 

300 (natural resources and environment). 

Basis of estimate: For this estimate, CBO assumes that H.R. 

2273 will be enacted by the end of fiscal year 2011 and that the 

necessary amounts will be appropriated. 

Certification of State CCR permit programs 

Based on information from EPA and other industry experts, CBO 

expects that all states with coal-fired power plants (that is, 45 

states and Puerto Rico) would most likely elect to operate their own 

programs to manage disposal of the waste material. Under this legislation, states would have six months after the bill’s enactment to 


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notify EPA of their intentions to adopt and implement their own 

CCR permit program; then, within three years of the bill’s enactment, the state agencies responsible for implementing the permit 

programs would be required to submit certifications of the state 

programs to EPA. Because this legislation would not provide EPA 

with the authority to substantially review certifications, CBO estimates that EPA’s workload for this activity over the 2012–2015 period would not be significant. Based on information from EPA, CBO 

estimates that over the 2012–2015 period, EPA would incur costs 

of about $200,000 to $300,000 annually to support the initial certification process. 

Review of existing State CCR permit programs 

H.R. 2273 would provide EPA with the authority to evaluate 

whether a state’s CCR permit program is being implemented consistent with the minimum program specifications established under 

the bill. Consequently, EPA’s costs to implement the legislation 

could increase beginning in 2016—after state programs are certified and operational—to the extent that EPA would need to review certain state CCR permit programs for deficiencies. According 

to EPA and other industry experts, such reviews could be initiated 

by a petition for government action from an environmental group 

or other interested parties. While it is not likely that EPA would 

immediately review the CCR permit programs for all states, some 

reviews of programs in states with high coal consumption would 

probably be initiated beginning in 2016. Based on information from 

EPA, CBO estimates that reviewing a state program would cost, on 

average, about $165,000 and would generally take less than one 

year to complete. Thus, assuming that EPA would initiate reviews 

of several state CCR permit programs beginning in 2016, CBO estimates that work would cost $1 million to $2 million in 2016. (Additional reviews and EPA costs could occur after 2016.) 

Pay-As-You-Go considerations: None. 

Estimated impact on state, local, and tribal governments: H.R. 

2273 would impose an intergovernmental mandate as defined in 

UMRA. The bill would require states to notify EPA whether they 

will adopt and implement a CCR permit program. CBO estimates 

that the cost of that notification requirement would be small and 

well below the threshold established for intergovernmental mandates ($71 million in 2011, adjusted annually for inflation). If 

states chose to adopt and implement a CCR permit program, any 

costs they incurred would result from participation in a voluntary 

federal program and not from the requirements of an intergovernmental mandate. 

Estimated impact on the private sector: H.R. 2273 contains no 

private-sector mandates as defined in UMRA. 

Estimate prepared by: Federal costs: Susanne S. Mehlman and 

Susan Willie; Impact on state, local, and tribal governments: Ryan 

Miller; Impact on the private sector: Amy Petz. 

Estimate approved by: Theresa Gullo, Deputy Assistant Director 

for Budget Analysis. 


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FEDERAL MANDATES STATEMENT

The Committee adopts as its own the estimate of Federal mandates prepared by the Director of the Congressional Budget Office 

pursuant to section 423 of the Unfunded Mandates Reform Act. 

ADVISORY COMMITTEE STATEMENT

This legislation creates no advisory committees within the meaning of section 5(b) of the Federal Advisory Committee Act. 

APPLICABILITY TO LEGISLATIVE BRANCH

The Committee finds that the legislation does not relate to the 

terms and conditions of employment or access to public services or 

accommodations within the meaning of section 102(b)(3) of the Congressional Accountability Act. 

SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION

Sec. 1. Short title 

This section entitles the Act as the ‘‘Coal Residuals Reuse and 

Management Act.’’ 

Sec. 2. Amendment to Subtitle D of the Solid Waste Disposal Act 

Section 2 amends Subtitle D of the Solid Waste Disposal Act (42 

U.S.C. 6941 et seq.) by adding a new section, section 4011, Management and Disposal of Coal Combustion Residuals. 

Subsection (a) of new section 4011 permits States to choose 

whether to adopt and implement a permit program, as defined in 

subsection (k) paragraph (2) of H.R. 2273. It is the intent of the 

Committee that a permit program be adopted and implemented in 

every State that generates, stores, disposes of, or uses coal combustion residuals. The Committee believes that States are best situated to structure a permit program. The Committee intends for 

H.R. 2273 to provide States flexibility regarding their individual 

permit programs while ensuring that the States have the necessary 

authorities and procedures, including staffing and technical capabilities, to allow them to implement a permit program that meets 

the minimum specifications set out in this bill. 

Subsection (b) of new section 4011 sets out the requirements a 

State must comply with to adopt and implement a permit program. 

Paragraph (b)(1) requires a State that intends to adopt and implement a coal combustion residuals permit program to notify EPA 

within six months of enactment of H.R. 2273 that it intends to do 

so. 

Paragraph (b)(2) of new section 4011 requires States that intend 

to adopt and implement a permit program to certify to EPA, within 

36 months of enactment of H.R. 2273, that its permit program 

meets the specifications set out in this bill. The certification must 

identify the lead State agency responsible for implementing the 

permit program and any other State agencies involved. The certification also must contain a narrative explanation of how the State 

permit program will meet the specifications. Paragraph (b)(2) further requires that each State that intends to implement a permit 

program provide a legal certification that it has fully effective statutes, regulations, or guidance necessary to carry out the permit 


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program. The Committee intends that States will have the appropriate statutes, regulations, or guidance in effect at the time of the 

certification. The Committee also acknowledges that, consistent 

with the State Implementation Rule for the Part 258 municipal 

solid waste landfill permit program [40 CFR Part 239], a legal certification may be signed by either the State Attorney General or 

independent legal counsel designated by the State. 

Paragraph (b)(3) of new section 4011 provides that in order to 

adopt or implement a permit program, the State must maintain an 

approved program for municipal solid waste under section 4005(c) 

or an authorized hazardous waste program under section 3006 of 

the Solid Waste Disposal Act. [In the Committee’s view States with 

an approved program under section 4005(c) or an authorized program under section 3006 of the Solid Waste Disposal Act have already adequately demonstrated to the Administrator that they are 

capable of administering such permit programs.] [The Committee 

believes that States that are approved under 4005(c) or authorized 

by 3006 have established sufficient evidence of their capability to 

implement a permit program.] Upon submission of its certification, 

a State may immediately commence or continue the implementation of a permit program. States that are already implementing a 

permit program may continue to operate the program while the 

State completes the certification process. 

Subsection (c) of new section 4011 lays out the minimum Federal 

standards for any permit program. Paragraph (c)(1) describes the 

specifications for a permit program as follows: 

Subparagraph (A) of paragraph (c)(1) of new section 4011 requires that specific provisions of the revised criteria (for design, 

ground water monitoring, corrective action, closure, and post-closure) be applied as part of a State permit program. A State permit 

program may apply any of the revised criteria in 40 CFR, Part 258. 

Paragraph (c)(2) highlights parts of 40 CFR Part 258 that apply to 

all permit programs, subject to new section 4011 (c)(3), which allows States to determine that, on a programmatic basis, certain revised criteria are not appropriate. 

Subparagraph (B) of paragraph (c)(1) of new section 4011 requires structural stability assessments for structures used for the 

storage and disposal of coal combustion residuals. The Committee 

intends for States to incorporate this requirement into permit programs to ensure that structures are not only designed and constructed properly, but also maintained so as to remain structurally 

sound. The design, construction, and maintenance of structures are 

to be assessed in accordance with generally accepted engineering 

standards. The Committee intends that the terms ‘‘generally accepted engineering standards’’ have the same meaning as the terms 

‘‘recognized and generally accepted good engineering practices’’ as 

used in EPA’s Proposed Rule. EPA defines ‘‘recognized and generally accepted good engineering practices’’ as ‘‘engineering, operation, or maintenance activities based on established codes, standards, published technical reports or recommended practices or a 

similar document. Recognized and generally accepted good engineering practices detail generally approved ways to perform specific 

engineering, inspection or mechanical integrity activities.’’ This 

subparagraph provides the head of an agency responsible for implementing a permit program with authority to determine whether 


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structural integrity is deficient based on these recognized and generally accepted good engineering practices. This subparagraph also 

provides authority to require corrective action for such deficiency 

and authorizes the permitting agency to require closure (pursuant 

to subsection (h)) if corrective action is not possible for the identified deficiency. 

Subparagraph (C) of paragraph (c)(1) of new section 4011 applies 

specific parts of the revised criteria (location, design, groundwater 

monitoring, corrective action, financial assurance, closure and postclosure), which were originally promulgated by EPA for municipal 

solid waste landfills, to surface impoundments used for the storage 

and disposal of coal combustion residuals. The Committee notes 

that the revised criteria promulgated by EPA for municipal solid 

waste landfills, 40 CFR, Part 258, are based on the standard that 

the criteria be protective of human health and the environment. 

Subparagraph (D) of paragraph (c)(1) of new section 4011 sets 

out the groundwater detection monitoring constituents relevant to 

coal combustion residuals, and includes some constituents not identified in the revised criteria, namely, boron, chloride, conductivity, 

fluoride, pH, sulphate, sulfide, and total dissolved solids. 

Subparagraph (E) of paragraph (c)(1) of new section 4011 sets 

out the authority of each permit program to determine whether 

structures classified as posing a ‘‘high hazard potential’’—using the 

Federal Emergency Management Agency Federal Guidelines for 

Dam Safety: Hazard Potential Classification System for Dams, 

(FEMA Publication Number 333)—are deficient based upon structural integrity assessments and if so, to require corrective action 

for such deficiency. This subparagraph also authorizes the permitting authority to require closure (pursuant to subsection (h) of the 

bill) if corrective action is not possible for the identified deficiency. 

Subparagraph (F) of paragraph (c)(1) of new section 4011 provides that new structures that receive coal combustion residuals 

after the date of enactment must be constructed with a minimum 

base of 2 feet above the upper limit of the water table. This subparagraph ensures that the location restrictions in the revised criteria are sufficient to address coal combustion residuals and surface impoundments. 

Subparagraph (G) of paragraph (c)(1) of new section 4011 acknowledges State authority to inspect structures and enforce a coal 

combustion residuals permit program. 

Paragraph (c)(2) of new section 4011 identifies specific provisions 

of the revised criteria that are to be applied as part of all permit 

programs. This paragraph delineates a subset of the revised criteria as part of the minimum Federal baseline applicable to all coal 

combustion residuals permit programs. While H.R. 2273 expressly 

requires certain elements of the revised criteria to be included in 

any coal combustion residuals permit program, the Committee intends that States may apply any of the revised criteria, promulgated by the Administrator as necessary to protect human health 

and the environment under RCRA sections 4004(a) and 1008(a)(3) 

and revised under section 4010(c) of RCRA, published at 40 CFR 

Part 258. 

Subparagraph (A) of paragraph (c)(2) of new section 4011 specifically includes the revised criteria from 40 CFR Part 258 for design, 

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sure. A permit program must include design criteria in 40 CFR 

258.40 for new structures and lateral expansions of structures that 

begin receiving coal combustion residuals after the date of enactment and must require that all structures that receive coal combustion residuals after the date of enactment have groundwater 

monitoring as described in 40 CFR 258 subpart E. 

Subparagraph (B) of paragraph (c)(2) of new section 4011 requires a permit program to have location restrictions appropriate 

to the type of structure. The Committee recognizes that new structures and lateral expansions of existing structures require different 

siting restrictions from those applicable for existing structures. 

New structures and lateral expansions of existing structures that 

begin receiving coal combustion residuals after the date of enactment must comply with the location restrictions in 40 CFR 258.11 

through 258.15. Permitting of existing structures need only include 

the location restrictions in 40 CFR 258.11 and 258.15. 

Subparagraph (C) of paragraph (c)(2) of new section 4011 requires a permit program to include the requirements in 40 CFR 

Part 258.24. While the Committee considers the applicable Clean 

Air Act provisions and individual State fugitive dust requirements 

adequate to address any potential dust issues with coal combustion 

residuals structures, the bill does require that structures that receive coal combustion residuals after enactment comply with the 

revised criteria for air quality described in section 40 CFR 258.24. 

Subparagraph (D) of paragraph (c)(2) of new section 4011 requires a permit program to include the financial assurance requirements in section 40 CFR 258 subpart G. 

Paragraph (c)(3) of new section 4011 allows States to determine 

that certain elements of the revised criteria set forth in paragraph 

(c)(2) are not needed for the management of coal combustion residuals under the States’ permit program and a State may decline 

to apply those particular criteria to the entire permit program. 

Whether or not a State determines that a requirement of the revised criteria is not needed for its permit program, nothing in this 

subsection limits the ability of permitting authorities to tailor application of the criteria on a permit-by-permit basis. 

Subsection (d) of new section 4011 requires the Administrator to 

provide written notice to a State that fails to take certain actions 

and allows a State that receives written notice from the Administrator an opportunity to remedy any deficiency identified. The Administrator’s notice requirement is triggered if a State fails to: (A) 

notify the Administrator regarding whether it intends to adopt and 

implement a permit program within six months of the date of enactment; (B) submit a certification that its permit program meets 

the minimum specifications within 36 months of the date of enactment; (C) maintain either an approved Municipal Solid Waste permit program under section 4005(c) of the Solid Waste Disposal Act 

or a hazardous waste permit program under section 3006 of the 

Solid Waste Disposal Act; or (D) implement a permit program. 

After certifying to the Administrator that it has the requisite statutes, regulations, or guidance in place, a State will need a reasonable time period to fully implement a permit program and begin 

issuing and enforcing permits. Because the legislation provides deference to States for the regulation of coal combustion residuals, the 

Committee expects that before EPA sends written notice under 


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subsection (d) of new section 4011, EPA will communicate with the 

State regarding any alleged failure to implement a permit program 

and will consider carefully the State’s perspective. This deference 

to the State is required by subsection (i) of new section 4011. 

Paragraph (2) of subsection (d) of new section 4011 details the 

contents of a written notice provided by the Administrator to a 

State that fails to take actions identified in paragraph (d)(1). The 

Committee intends that the Administrator include in the written 

notice, the Agency’s findings regarding whether a State: failed to 

comply with the notification requirement under subsection (b)(1); 

failed to comply with the certification requirement under subsection (b)(2); failed to comply with the maintenance requirement 

under subsection (b)(3); or is not implementing a permit program 

that meets the minimum specifications under subsection (c)(1). 

This subsection also requires the Administrator to collaborate with 

a State that receives a written notice to set a reasonable deadline 

for the State to remedy any deficiencies identified by the Administrator in the notice. The deadline may not be sooner than six 

months from the date the State receives the written notice. 

Subsection (d), paragraph (2) of new section 4011 sets forth the 

factors that may be contained in a notice from the Administrator 

to a State detailing the Agency’s position that a State’s permit program is deficient, including that a State’s program does not meet 

the minimum permit program specifications set forth in paragraph 

(c)(1) of H.R. 2273. The Administrator’s evaluation of a State program is limited to the specifications set forth in paragraph (c)(1). 

The Administrator may not assert that a State’s program is deficient based upon a claim that the program does not contain a requirement not specifically set forth in paragraph (c)(1). 

Subsection (e) of new section 4011 requires the Administrator to 

implement and administer a permit program for a State in only 

three (3) circumstances: (1) the Governor of a State notifies the Administrator that such State will not adopt and implement its own 

permit program; (2) the State receives a notice of deficiency under 

subsection (d) and after completion of judicial review under section 

7006 of the Solid Waste Disposal Act, fails to remedy the deficiency 

by the date agreed upon by the State and the Administrator; or (3) 

a State informs the Administrator that such State no longer wishes 

to implement a permit program. 

Subsection (e) further provides that in circumstances where the 

Administrator implements a permit program for a State under subsection (e), such a permit program be confined to the program specifications set forth in subsection (c)(1) of the bill. H.R. 2273 does 

not authorize a program implemented by the Administrator to include requirements not specifically identified in subsection (c)(1). 

When the Administrator is implementing a permit program 

under this subsection, the legislation provides EPA with the inspection and enforcement authorities referred to in 4005(c)(2)(A) of the 

Solid Waste Disposal Act. The authorities referred to in section 

4005(c)(2)(A) of the Solid Waste Disposal Act are those in sections 

3007 and 3008 of the Solid Waste Disposal Act. Absent an imminent hazard addressed by EPA under section 7003 of the Solid 

Waste Disposal Act, nothing in new section 4011 grants EPA inspection and enforcement authority in States whose permit proVerDate Mar 15 2010 05:26 Sep 28, 2011 Jkt 099006 PO 00000 Frm 00018 Fmt 6659 Sfmt 6602 E:\HR\OC\HR226.XXX HR226

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grams have not been assumed by the Administrator pursuant to 

the provisions of subsection (e). 

Subsection (f) of new section 4011 sets out the procedural requirements States must follow to regain control of their permit program. Subparagraph (1)(A) provides that if EPA is implementing a 

permit program because the Governor notified the Administrator 

that such State did not intend to adopt and implement a permit 

program, a State may resume control of its permit program by: (1) 

notifying EPA of its intent to adopt and implement a permit program; (2) certifying to EPA within six months of notification, pursuant to the requirements provided in subsection (b)(2) of H.R. 

2273, that its program meets the minimum specifications for a permit program; and (3) receiving from the Administrator a determination that the State’s permit program meets the minimum program specifications described in subsection (c)(1) of H.R. 2273 and 

a timeline for transition of control of the permit program from the 

Administrator to the State agency responsible for implementing the 

State’s permit program. 

Subparagraph (B) of paragraph (f)(1) of new section 4011 provides that, if the Administrator is implementing a permit program 

because a State failed to remedy an identified deficiency with its 

permit program, a State may take back control of its permit program by: (1) correcting deficiencies identified by the Administrator; 

and (2) receiving a determination from the Administrator that the 

State adequately remedied any deficiencies in the permit program 

and a timeline for transition of control of the permit program from 

the Administrator to the State official responsible for operating the 

State’s permit program. 

Subparagraph (C) of paragraph (f)(1) of new section 4011 provides that, if the Administrator is implementing a permit program 

because a State informed the Administrator that the State will no 

longer implement its own permit program, a State may resume implementation of its permit program by: (1) notifying the Administrator of its intent to adopt and implement a permit program; (2) 

providing the Administrator, within 6 months of its notification, a 

certification pursuant to the requirements provided in paragraph 

(2) of subsection (b); and (3) receiving a determination from the Administrator that the State’s permit program meets the minimum 

program specifications described in paragraph (1) of subsection (c) 

and a timeline for transition of control of the permit program from 

the Administrator to the State official responsible for operating the 

State’s permit program. 

Subparagraph (A) of paragraph (f)(2) of new section 4011 provides that if a State begins the process of taking control of a permit 

program from the Administrator by submitting a certification, or 

notifies the Administrator that it has corrected any identified deficiencies with its permit program, the Administrator, within 90 days 

of the date on which a State initiates the process of taking back 

its permit program, is required to make a determination as to 

whether the relevant statutory criteria have been met for a State 

to take over control of its permit program. 

Subparagraph (B) of paragraph (f)(2) of new section 4011 allows 

a State to obtain a review of the Administrator’s determination of 

whether a State may take over implementation of its permit program as if such determination were a final regulation subject to juVerDate Mar 15 2010 05:26 Sep 28, 2011 Jkt 099006 PO 00000 Frm 00019 Fmt 6659 Sfmt 6602 E:\HR\OC\HR226.XXX HR226

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dicial review under section 7006 of the Solid Waste Disposal Act. 

A determination made by the Administrator under subsection 

(f)(2)(B) of new section 4011 is considered a final regulation for 

purposes of section 7006 of the Solid Waste Disposal Act and is 

subject to judicial review. 

Paragraph (3) of subsection (f) of new section 4011 provides that 

during the transition of control of a permit program between a 

State and the Administrator, actions taken and orders issued remain in effect. This provision was included to prevent a gap in regulation. Control will remain with the entity transferring the permit 

program until the entity assuming the program is able to fully implement the permit program. Subparagraphs (A) and (B) require 

existing actions, orders, or permits issued pursuant to a permit 

program to remain in effect until the entity assuming control of the 

permit program: (1) implements changes to the requirements of the 

permit program with respect to the basis for the action or order or 

(2) certifies the completion of a corrective action that is the subject 

of the action or order. 

Paragraph (4) of subsection (f) of new section 4011 requires that 

there be only one permit program in each State at any given time. 

Therefore, H.R. 2273 requires that if a State regains control of a 

permit program from the Administrator, the Administrator cease to 

implement permit program. 

Subsection (g) of new section 4011 prohibits the Administrator 

from considering the implementation of a permit program in making a determination under section 4005(c) or 3006 of this title. The 

Committee intends that if the Administrator is implementing a 

permit program under subsection (e) of new section 4011 in a 

State, the Administrator may not use that fact against a State in 

approving or withdrawing approval for a Municipal Solid Waste 

permit program under section 4005(c) of the Solid Waste Disposal 

Act or issuing or withdrawing authorization under section 3006 of 

the Solid Waste Disposal Act for a hazardous waste program. 

Subsection (h) of new section 4011 states that if, pursuant to a 

permit program, it is determined that a structure should close, the 

time period and method for the closure of such structure shall be 

set forth in a schedule that is part of a site-specific closure plan 

that takes into account the location and characteristics of the structure to be closed. In the case of surface impoundments, this subsection requires the closure plan, at a minimum, to address the removal of liquid and the stabilization of remaining waste, as necessary to support the final cover. The Committee recognizes that 

whether, and to what degree, dewatering of an impoundment and/ 

or stabilization of the remaining coal combustion residuals is necessary to support a final cover will likely involve a site specific engineering evaluation that should be part of the closure plan. The 

Committee also recognizes that based on an engineering evaluation 

that may be part of the closure plan, stabilization beyond 

dewatering may not be necessary to support a final cover system. 

The Committee intends that closure of structures for the management and disposal of coal combustion residuals, as defined in 

paragraph (k)(3), involves a range of site-specific factors and that 

the closure timeframes applicable to municipal solid waste landfills 

under 40 CFR, Part 258 of Title 40 may not be appropriate. For 

example, municipal solid waste landfill closure requirements in 


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Part 258 allow 180 days for closure, but the closure of surface impoundments containing coal combustion residuals may take significantly longer because dewatering and draining the liquid must be 

done gradually. This subsection ensures that if a permitting authority determines that a coal combustion waste structure must 

close, closure requirements take into account site-specific factors 

and the closure plan takes into account the time needed to address 

the issue of alternate disposal capacity to replace the closed structure. 

The Committee also understands that coal combustion residual 

impoundments often serve a wastewater management function by 

receiving and handling water from other power plant processes, including storm water run-off. The Committee anticipates that a closure plan, issued pursuant to this subsection, would recognize this 

ancillary function and provide a reasonable time for alternative 

wastewater treatment facilities to be permitted and constructed. 

Subsection (i) of the new section 4011 provides that nothing in 

new section 4011 of the Solid Waste Disposal Act precludes or denies any right of any State to adopt or enforce any regulation or 

requirement, respecting coal combustion residuals, that is more 

stringent or broader in scope than a regulation or requirement required under new section 4011 of the Solid Waste Disposal Act. 

This provision is consistent with other subtitles of the Solid Waste 

Disposal Act that allow States to be more stringent than the Federal baseline established by this legislation. 

Paragraph (2)(A) of subparagraph (i) of new section 4011 requires that, with respect to the regulation of coal combustion residuals, the Administrator defer regulation to the States unless the 

Administrator is regulating coal combustion residuals in a State 

pursuant to a program authorized under subsection (e) of new section 4011 or as part of the Administrator’s authorities regarding 

Federally-funded projects involving procurement of cement or concrete under section 6005 of the Solid Waste Disposal Act. The Committee understands that a blanket prohibition on the authority of 

the Administrator to regulate coal combustion residuals under any 

subtitle of the Solid Waste Disposal Act could have adverse impacts 

where State laws preclude a State from regulating more stringently 

than the Administrator. This provision also precludes the Administrator from finalizing the proposed coal combustion residual regulations promulgated on June 21, 2011, and prohibits the Administrator from promulgating any additional regulations to regulate 

coal combustion residuals. 

Paragraph (2)(B) of subparagraph (i) of new section 4011 states 

that nothing in this section shall be construed to affect the authority of the Administrator under section 7003 of the Solid Waste Disposal Act to address imminent and substantial endangerments to 

health or the environment with respect to the disposal of coal combustion residuals. 

Subparagraph (j) of the new section 4011 states that a permit 

program implemented by the Administrator under subsection (e) of 

new section 4011 shall not apply to the utilization, placement, and 

storage of coal combustion residuals at surface mining and reclamation operations. The Department of the Interior, Office of Surface Mining Reclamation and Enforcement under the Surface Mining Control and Reclamation Act (SMCRA) (30 U.S.C. 1234 et seq.) 


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governs the utilization, placement, and storage of coal combustion 

residuals at surface mining and reclamation operations. In addition, several States utilize their solid waste laws and regulations 

to govern the utilization, placement, and storage of coal combustion 

residuals at surface mining and reclamation operations and the 

legislation does not affect such State authorities. 

Subsection (k) of new section 4011 identifies the following terms 

and states their meaning: 

Paragraph (1) of subsection (k) defines ‘‘coal combustion residuals’’ to include those solid wastes identified in Section 

3001(b)(3)(A)(i) of the Solid Waste Disposal Act, including recoverable materials from such wastes. Section 3001(b)(3)(A)(I) defines 

these wastes to be: fly ash waste, bottom ash waste, slag waste, 

and flue gas emissions control waste generated primarily from the 

combustion of coal or other fossil fuels. ‘‘Coal combustion residuals’’ 

also includes other non-hazardous wastes: (1) coal combustion 

waste when co-managed with certain other wastes produced in conjunction with the combustion of coal, provided that such wastes are 

not segregated and disposed of separately from the coal combustion 

wastes and comprise a relatively small proportion of the total 

wastes being disposed of in the structure; (2) fluidized bed combustion wastes; (3) wastes from co-burning coal with non-hazardous 

secondary materials provided that coal makes up at least 50% of 

the total fuel burned; and (4) wastes that are recovered from 

monofills, which consist of wastes from co-burning coal with fly ash 

waste, bottom ash waste, slag waste, and flue gas emissions control 

waste generated primarily from the combustion of coal or other fossil fuels. 

Paragraph (2) of subsection (k) defines ‘‘coal combustion residuals 

permit program’’ to mean a permit program that is adopted by a 

State or, as conditioned in this bill by the Administrator, for a 

State for the management and disposal of coal combustion residuals to the extent such activities occur in structures in such State. 

The limitation in the definition, ‘‘to the extent such activities occur 

in structures in such State’’ is included because States where coal 

is not produced or burned for electricity, or where coal combustion 

residuals are not stored or disposed of, may not need a permit program. 

Paragraph (3) of subsection (k) defines ‘‘structure’’ to include 

landfills, surface impoundments, or other land-based units which 

may receive coal combustion residuals, including both wet and dry 

surface impoundments. The Committee is aware that 40 CFR, Part 

258 was promulgated by the Administrator to regulate municipal 

solid waste landfills. The Committee, however, intends this legislation to govern all land-based disposal units for coal combustion residuals and believes that the requirements in 40 CFR Part 258 are 

adaptable and appropriate for disposal of coal combustion residuals 

in structures other than solid waste landfills. The Committee believes that this legislation closes any perceived gaps between the 

requirements of 40 CFR Part 258 and what is required to regulate 

land-based disposal units other than solid waste landfills. 

The Committee does not intend to include in the definition of 

‘‘structure,’’ land-based units at coal-fired electric power plants— 

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ceive small or incidental amounts of, and are not intended to serve 

as disposal structures for, coal combustion residuals. 

Paragraph (4) of subsection (k) defines the term ‘revised criteria’ 

to mean the criteria promulgated for Municipal Solid Waste landfill 

units under 4004(a) of the Solid Waste Disposal Act and under 

1008(a)(3) of the Solid Waste Disposal Act, as revised under section 

4010(c) of the Solid Waste Disposal Act. The Committee believes 

that it is not necessary for EPA to promulgate new regulations. 

EPA acknowledged in the Proposed Rule that the ‘‘part 258 criteria 

represent a reasonable balance between ensuring the protection of 

human health and the environment from the risks of these wastes 

and the practical realities of facilities’ ability to implement the criteria.’’ 

The Committee expects that permit programs using the minimum Federal baseline established by this legislation will meet the 

standard of protecting human health and the environment, and 

notes that the ‘revised criteria’ that serve as the baseline for permit 

programs consist of criteria that the Administrator promulgated 

pursuant to sections 1008(a)(3), 4004(a), and 4010(c) of RCRA—and 

which require that the Agency’s promulgated regulations provide: 

‘‘. . . for the protection of public health and the environment. . . .’’ [1008(a)]; 

‘‘. . . no reasonable probability of adverse effects on health or 

the environment’’ [4004(a)]; and 

‘‘the criteria . . . necessary to protect human health and the 

environment. . . .’’ [4010(c)]. 

Finally, while H.R. 2273 does not preclude EPA from revising the 

criteria in Part 258, such future revisions to Part 258 would apply 

to the entire municipal solid waste landfill program. 

Sec. 3. 2000 Regulatory determination 

This section provides that nothing in H.R. 2273 shall be construed to alter EPA’s regulatory determination entitled ‘‘Notice of 

Regulatory Determination on Wastes from the Combustion of Fossil 

Fuels,’’ published at 65 Fed. Reg. 32214 (May 22, 2000). 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (new matter is printed in italic 

and existing law in which no change is proposed is shown in 

roman): 

SOLID WASTE DISPOSAL ACT 

TITLE II—SOLID WASTE DISPOSAL 

SHORT TITLE AND TABLE OF CONTENTS

SEC. 1001. This title (hereinafter in this title referred to as ‘‘this 

Act’’), together with the following table of contents, may be cited as 

the ‘‘Solid Waste Disposal Act’’: 


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SUBTITLE A—GENERAL PROVISIONS

Sec. 1001. Short title and table of contents. 

* * * * * * * 

SUBTITLE D—STATE OR REGIONAL SOLID WASTE PLANS

Sec. 4001. Objectives of subtitle. 

* * * * * * * 

Sec. 4011. Management and disposal of coal combustion residuals. 

* * * * * * * 

Subtitle D—State or Regional Solid Waste Plans 

* * * * * * * 

SEC. 4011. MANAGEMENT AND DISPOSAL OF COAL COMBUSTION RESIDUALS. 

(a) STATE PERMIT PROGRAMS FOR COAL COMBUSTION RESIDU- ALS.—Each State may adopt and implement a coal combustion residuals permit program. 

(b) STATE ACTIONS.— (1) NOTIFICATION.—Not later than 6 months after the date of 

enactment of this section (except as provided by the deadline 

identified under subsection (d)(2)(B)), the Governor of each 

State shall notify the Administrator, in writing, whether such 

State will adopt and implement a coal combustion residuals 

permit program. 

(2) CERTIFICATION.— 

(A) IN GENERAL.—Not later than 36 months after the 

date of enactment of this section (except as provided in subsections (f)(1)(A) and (f)(1)(C)), in the case of a State that 

has notified the Administrator that it will implement a coal 

combustion residuals permit program, the head of the lead 

State agency responsible for implementing the coal combustion residuals permit program shall submit to the Administrator a certification that such coal combustion residuals 

permit program meets the specifications described in subsection (c)(1). 

(B) CONTENTS.—A certification submitted under this 

paragraph shall include— 

(i) a letter identifying the lead State agency responsible for implementing the coal combustion residuals 

permit program, signed by the head of such agency; 

(ii) identification of any other State agencies involved 

with the implementation of the coal combustion residuals permit program; 

(iii) a narrative description that provides an explanation of how the State will ensure that the coal combustion residuals permit program meets the requirements of this section; 

(iv) a legal certification that the State has, at the 

time of certification, fully effective statutes, regulations, 

or guidance necessary to implement a coal combustion 

residuals permit program that meets the specifications 

described in subsection (c)(1); and 

(v) copies of State statutes, regulations, and guidance 

described in clause (iv). 


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(3) MAINTENANCE OF 4005(C) OR 3006 PROGRAM.—In order to 

adopt or implement a coal combustion residuals permit program under this section (including pursuant to subsection (f)), 

the State agency responsible for implementing a coal combustion residuals permit program in a State shall maintain an approved program under section 4005(c) or an authorized program under section 3006. 

(c) PERMIT PROGRAM SPECIFICATIONS.— 

(1) MINIMUM REQUIREMENTS.—The specifications described in 

this subsection for a coal combustion residuals permit program 

are as follows: 

(A) The revised criteria described in paragraph (2) shall 

apply to a coal combustion residuals permit program, except as provided in paragraph (3). 

(B) Each structure shall be, in accordance with generally 

accepted engineering standards for the structural integrity 

of such structures, designed, constructed, and maintained 

to provide for containment of the maximum volumes of coal 

combustion residuals appropriate for the structure. If a 

structure is determined by the head of the agency responsible for implementing the coal combustion residuals permit program to be deficient, the head of such agency has 

authority to require action to correct the deficiency. If the 

identified deficiency is not corrected, the head of such agency has authority to require that the structure close in accordance with subsection (h). 

(C) The coal combustion residuals permit program shall 

apply the revised criteria promulgated pursuant to section 

4010(c) for location, design, groundwater monitoring, corrective action, financial assurance, closure and post-closure 

described in paragraph (2) and the specifications described 

in this paragraph to surface impoundments. 

(D) Constituents for detection monitoring shall include 

boron, chloride, conductivity, fluoride, pH, sulphate, sulfide, and total dissolved solids. 

(E) If a structure that is classified as posing a high hazard potential pursuant to the guidelines published by the 

Federal Emergency Management Agency entitled ‘‘Federal 

Guidelines for Dam Safety: Hazard Potential Classification 

System for Dams’’ (FEMA Publication Number 333) is determined by the head of the agency responsible for implementing the coal combustion residuals permit program to 

be deficient with respect to the structural integrity requirement in subparagraph (B), the head of such agency has authority to require action to correct the deficiency. If the 

identified deficiency is not corrected, the head of such agency has authority to require that the structure close in accordance with subsection (h). 

(F) New structures that first receive coal combustion residuals after the date of enactment of this section shall be 

constructed with a base located a minimum of two feet 

above the upper limit of the natural water table. 

(G) In the case of a coal combustion residuals permit program implemented by a State, the State has the authority 


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to inspect structures and implement and enforce such permit program. 

(2) REVISED CRITERIA.—The revised criteria described in this 

paragraph are— 

(A) the revised criteria for design, groundwater monitoring, corrective action, closure, and post-closure, for structures, including— 

(i) for new structures, and lateral expansions of existing structures, that first receive coal combustion residuals after the date of enactment of this section, the 

revised criteria regarding design requirements described in section 258.40 of title 40, Code of Federal 

Regulations; and 

(ii) for all structures that receive coal combustion residuals after the date of enactment of this section, the 

revised criteria regarding groundwater monitoring requirements described in subpart E of part 258 of title 

40, Code of Federal Regulations; 

(B) the revised criteria for location restrictions described 

in— 

(i) for new structures, and lateral expansions of existing structures, that first receive coal combustion residuals after the date of enactment of this section, sections 258.11 through 258.15 of title 40, Code of Federal 

Regulations; and 

(ii) for existing structures that receive coal combustion residuals after the date of enactment of this section, sections 258.11 and 258.15 of title 40, Code of 

Federal Regulations; 

(C) for all structures that receive coal combustion residuals after the date of enactment of this section, the revised 

criteria for air quality described in section 258.24 of title 

40, Code of Federal Regulations; and 

(D) for all structures that receive coal combustion residuals after the date of enactment of this section, the revised 

criteria for financial assurance described in subpart G of 

part 258 of title 40, Code of Federal Regulations. 

(3) APPLICABILITY OF CERTAIN REQUIREMENTS.—A State may 

determine that one or more of the requirements of the revised 

criteria described in paragraph (2) is not needed for the management of coal combustion residuals in that State, and may 

decline to apply such requirement as part of its coal combustion 

residuals permit program. If a State declines to apply a requirement under this paragraph, the State shall include in the certification under subsection (b)(2) a description of such requirement and the reasons such requirement is not needed in the 

State. If the Administrator determines that a State determination under this paragraph does not accurately reflect the needs 

for the management of coal combustion residuals in the State, 

the Administrator may treat such State determination as a deficiency under subsection (d). 

(d) WRITTEN NOTICE AND OPPORTUNITY TO REMEDY.— (1) IN GENERAL.—The Administrator shall provide to a State 

written notice and an opportunity to remedy deficiencies in accordance with paragraph (2) if at any time the State— 


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(A) does not satisfy the notification requirement under 

subsection (b)(1); 

(B) has not submitted a certification under subsection 

(b)(2); 

(C) does not satisfy the maintenance requirement under 

subsection (b)(3); or 

(D) is not implementing a coal combustion residuals permit program that meets the specifications described in subsection (c)(1). 

(2) CONTENTS OF NOTICE; DEADLINE FOR RESPONSE.—A notice 

provided under this subsection shall— 

(A) include findings of the Administrator detailing any 

applicable deficiencies in— 

(i) compliance by the State with the notification requirement under subsection (b)(1); 

(ii) compliance by the State with the certification requirement under subsection (b)(2); 

(iii) compliance by the State with the maintenance 

requirement under subsection (b)(3); and 

(iv) the State coal combustion residuals permit program in meeting the specifications described in subsection (c)(1); and 

(B) identify, in collaboration with the State, a reasonable 

deadline, which shall be not sooner than 6 months after the 

State receives the notice, by which the State shall remedy 

the deficiencies detailed under subparagraph (A). 

(e) IMPLEMENTATION BY ADMINISTRATOR.— (1) IN GENERAL.—The Administrator shall implement a coal 

combustion residuals permit program for a State only in the 

following circumstances: 

(A) If the Governor of such State notifies the Administrator under subsection (b)(1) that such State will not adopt 

and implement such a permit program. 

(B) If such State has received a notice under subsection 

(d) and, after any review brought by the State under section 

7006, fails, by the deadline identified in such notice under 

subsection (d)(2)(B), to remedy the deficiencies detailed in 

such notice under subsection (d)(2)(A). 

(C) If such State informs the Administrator, in writing, 

that such State will no longer implement such a permit 

program. 

(2) REQUIREMENTS.—If the Administrator implements a coal 

combustion residuals permit program for a State under paragraph (1), such permit program shall consist of the specifications described in subsection (c)(1). 

(3) ENFORCEMENT.—If the Administrator implements a coal 

combustion residuals permit program for a State under paragraph (1), the authorities referred to in section 4005(c)(2)(A) 

shall apply with respect to coal combustion residuals and structures and the Administrator may use such authorities to inspect, gather information, and enforce the requirements of this 

section in the State. 

(f) STATE CONTROL AFTER IMPLEMENTATION BY ADMINIS- TRATOR.— 

(1) STATE CONTROL.— 


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(A) NEW ADOPTION AND IMPLEMENTATION BY STATE.—For 

a State for which the Administrator is implementing a coal 

combustion residuals permit program under subsection 

(e)(1)(A), the State may adopt and implement such a permit 

program by— 

(i) notifying the Administrator that the State will 

adopt and implement such a permit program; 

(ii) not later than 6 months after the date of such notification, submitting to the Administrator a certification under subsection (b)(2); and 

(iii) receiving from the Administrator— 

(I) a determination that the State coal combustion residuals permit program meets the specifications described in subsection (c)(1); and 

(II) a timeline for transition of control of the coal 

combustion residuals permit program. 

(B) REMEDYING DEFICIENT PERMIT PROGRAM.—For a 

State for which the Administrator is implementing a coal 

combustion residuals permit program under subsection 

(e)(1)(B), the State may adopt and implement such a permit 

program by— 

(i) remedying the deficiencies detailed in the notice 

provided under subsection (d)(2)(A); and 

(ii) receiving from the Administrator— 

(I) a determination that the deficiencies detailed 

in such notice have been remedied; and 

(II) a timeline for transition of control of the coal 

combustion residuals permit program. 

(C) RESUMPTION OF IMPLEMENTATION BY STATE.—For a 

State for which the Administrator is implementing a coal 

combustion residuals permit program under subsection 

(e)(1)(C), the State may adopt and implement such a permit 

program by— 

(i) notifying the Administrator that the State will 

adopt and implement such a permit program; 

(ii) not later than 6 months after the date of such notification, submitting to the Administrator a certification under subsection (b)(2); and 

(iii) receiving from the Administrator— 

(I) a determination that the State coal combustion residuals permit program meets the specifications described in subsection (c)(1); and 

(II) a timeline for transition of control of the coal 

combustion residuals permit program. 

(2) REVIEW OF DETERMINATION.— 

(A) DETERMINATION REQUIRED.—The Administrator shall 

make a determination under paragraph (1) not later than 

90 days after the date on which the State submits a certification under paragraph (1)(A)(ii) or (1)(C)(ii), or notifies 

the Administrator that the deficiencies have been remedied 

pursuant to paragraph (1)(B)(i), as applicable. 

(B) REVIEW.—A State may obtain a review of a determination by the Administrator under paragraph (1) as if 

such determination was a final regulation for purposes of 

section 7006. 


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(3) IMPLEMENTATION DURING TRANSITION.— (A) EFFECT ON ACTIONS AND ORDERS.—Actions taken or 

orders issued pursuant to a coal combustion residuals permit program shall remain in effect if— 

(i) a State takes control of its coal combustion residuals permit program from the Administrator under 

paragraph (1); or 

(ii) the Administrator takes control of a coal combustion residuals permit program from a State under subsection (e). 

(B) CHANGE IN REQUIREMENTS.—Subparagraph (A) shall 

apply to such actions and orders until such time as the Administrator or the head of the lead State agency responsible 

for implementing the coal combustion residuals permit program, as applicable— 

(i) implements changes to the requirements of the 

coal combustion residuals permit program with respect 

to the basis for the action or order; or 

(ii) certifies the completion of a corrective action that 

is the subject of the action or order. 

(4) SINGLE PERMIT PROGRAM.—If a State adopts and implements a coal combustion residuals permit program under this 

subsection, the Administrator shall cease to implement the permit program implemented under subsection (e) for such State. 

(g) EFFECT ON DETERMINATION UNDER 4005(C) OR 3006.—The 

Administrator shall not consider the implementation of a coal combustion residuals permit program by the Administrator under subsection (e) in making a determination of approval for a permit program or other system of prior approval and conditions under section 

4005(c) or of authorization for a program under section 3006. 

(h) CLOSURE.—If it is determined, pursuant to a coal combustion 

residuals permit program, that a structure should close, the time period and method for the closure of such structure shall be set forth, 

in a schedule, in a closure plan that takes into account the nature 

and the site-specific characteristics of the structure to be closed. In 

the case of a surface impoundment, the closure plan shall require, 

at a minimum, the removal of liquid and the stabilization of remaining waste, as necessary to support the final cover. 

(i) AUTHORITY.— (1) STATE AUTHORITY.—Nothing in this section shall preclude 

or deny any right of any State to adopt or enforce any regulation or requirement respecting coal combustion residuals that is 

more stringent or broader in scope than a regulation or requirement under this section. 

(2) AUTHORITY OF THE ADMINISTRATOR.— 

(A) IN GENERAL.—Except as provided in subsection (e) of 

this section and section 6005 of this title, the Administrator 

shall, with respect to the regulation of coal combustion residuals, defer to the States pursuant to this section. 

(B) IMMINENT HAZARD.—Nothing in this section shall be 

construed to affect the authority of the Administrator under 

section 7003 with respect to coal combustion residuals. 

(j) MINE RECLAMATION ACTIVITIES.—A coal combustion residuals 

permit program implemented under subsection (e) by the Administrator shall not apply to the utilization, placement, and storage of 


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coal combustion residuals at surface mining and reclamation operations. 

(k) DEFINITIONS.—In this section: 

(1) COAL COMBUSTION RESIDUALS.—The term ‘‘coal combustion residuals’’ means— 

(A) the solid wastes listed in section 3001(b)(3)(A)(i), including recoverable materials from such wastes; 

(B) coal combustion wastes that are co-managed with 

wastes produced in conjunction with the combustion of 

coal, provided that such wastes are not segregated and disposed of separately from the coal combustion wastes and 

comprise a relatively small proportion of the total wastes 

being disposed in the structure; 

(C) fluidized bed combustion wastes; 

(D) wastes from the co-burning of coal with non-hazardous secondary materials provided that coal makes up at 

least 50 percent of the total fuel burned; and 

(E) wastes from the co-burning of coal with materials described in subparagraph (A) that are recovered from 

monofills. 

(2) COAL COMBUSTION RESIDUALS PERMIT PROGRAM.—The 

term ‘‘coal combustion residuals permit program’’ means a permit program or other system of prior approval and conditions 

that is adopted by or for a State for the management and disposal of coal combustion residuals to the extent such activities 

occur in structures in such State. 

(3) STRUCTURE.—The term ‘‘structure’’ means a landfill, surface impoundment, or other land-based unit which may receive 

coal combustion residuals. 

(4) REVISED CRITERIA.—The term ‘‘revised criteria’’ means the 

criteria promulgated for municipal solid waste landfill units 

under section 4004(a) and under section 1008(a)(3), as revised 

under section 4010(c). 

* * * * * * * 

ADDITIONAL VIEWS 

There was some confusion surrounding H.R. 2273, the Coal Residuals Reuse and Management Act, when it was reported from the 

Committee on Energy and Commerce. On April 6, 2011, the Subcommittee on Environment and Economy held a legislative hearing 

on H.R. 1391. H.R. 1391 was a completely different proposal than 

H.R. 2273, and the Subcommittee never held a hearing on H.R. 

2273. As a result, there is no legislative record that explains how 

the legislation is envisioned to be implemented, or what stakeholders views are on the legislation. 

Although members requested a hearing at the full committee 

markup in order to better understand the legislation, no hearing 

has been scheduled. Instead, members on both sides of the Committee were forced to rely on representations made by majority 

staff about the effect and intent of the legislation. Those representations are not reflected in the report on this bill. 


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1 75 F.R. 35175. 

2 75 F.R. 35215. 

For example, during consideration, members were told that the 

legislation would allow EPA to tailor disposal criteria to reflect the 

risks of Coal Combustion Residual (CCR) disposal, although no revisions would be required. In contrast, the report states: 

‘‘[W]hile H.R. 2273 does not preclude EPA from revising 

the criteria in Part 258, such future revisions would apply 

to the entire municipal solid waste landfill program.’’ 

If this statement accurately reflects the intent and effect of the legislation, then EPA is precluded from tailoring or adapting criteria 

for the disposal of CCR. Unsafe CCR disposal can lead to contamination from aluminum, arsenic, boron, cadmium, chloride, fluoride, 

iron, lead, manganese, mercury, molybdenum, and sulfate. This list 

of contaminants is different from those posing a threat from unsafe 

disposal of municipal solid waste. 

Also during consideration, representations were made about the 

incorporation of the protectiveness standard of RCRA Section 

4010(C). That section, pursuant to which the criteria for disposal 

of municipal solid waste were promulgated, establishes that criteria for disposal must include the requirements necessary to protect human health and the environment from the risks associated 

with disposal of municipal solid waste. However, the majority report does not reflect that intent. The majority writes: 

The Administrator’s evaluation of a State program is 

limited to the specifications set forth in paragraph (c)(1). 

The Administrator may not assert that a State’s program 

is deficient based upon a claim that the program does not 

contain a requirement not specifically set forth in paragraph (c)(1). 

Thus, according to the Committee report, if a plan includes the requirements specifically set forth in paragraph (c)(1) but is not sufficient to protect human health and the environment, the EPA would 

be blocked from finding that plan deficient. This statement from 

the majority conflicts with representations that were made about 

the incorporation of a standard of protectiveness. 

This confusion extends to specific requirements, such as dust 

control. In its subtitle D proposal for CCR disposal, EPA required 

dust control ‘‘by either covering or otherwise managing CCRs to 

control wind dispersal of dust, emplacement as wet conditioned 

CCRs to control wind dispersal, when stored in piles, or storage in 

tanks or buildings.’’ 1 That requirement was included because of 

health concerns. For instance, EPA has stated: 

Inhalation of hexavalent chromium has been shown to 

cause lung cancer. By requiring fugitive dust controls, the 

proposed rule would reduce inhalation exposure to 

hexavalent chromium near CCR disposal units that are 

not currently required to control fugitive dust.2

The risk of exposure to hexavalent chromium through inhalation is 

in addition to general risks from exposure to particulate matter. At 

the subcommittee hearing on this topic, witnesses from the 

ASTWMO and the American Coal Ash Association testified that 


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they support improvements to the standards for landfill disposal, 

such as dust control. 

Representations were made during consideration of the bill that 

the legislation would incorporate the dust control requirements included in EPA’s subtitle D proposal. However, the majority report 

makes clear that these requirements are not intended to be included in the legislation. Instead, the majority writes: 

‘‘[T]he Committee considers the applicable Clean Air Act 

provisions and individual State fugitive dust requirements 

adequate to address any potential dust issues with coal 

combustion residuals structures.’’ 

These discrepancies are illustrative, but do not represent an exhaustive list. The Committee has still not heard from the EPA or 

stakeholders on the legislation. The one piece of expert analysis 

available to the Committee, the analysis of costs prepared by the 

Congressional Budget Office, has been rejected by the majority in 

their report. Although the Congressional Budget Office expects that 

EPA will need to review state permit programs to ensure that they 

are meeting the specifications of the bill. The majority rejects this 

idea, demonstrating that they do not intend the EPA to play a role 

in ensuring sufficient state programs to protect human health and 

the environment. 

The majority’s rejection of the CBO score raises significant concerns about how the program will be paid for and as to whether 

the majority understands the effects and implementation of the legislation they have reported. 

It is clear that this legislation must be subject to additional scrutiny, and the legislative record is not yet sufficient to inform a floor 

vote on this legislation. 

HENRY A. WAXMAN. 

G.K. BUTTERFIELD. 

LOIS CAPPS. ANNA G. ESHOO. DORIS O. MATSUI. FRANK PALLONE, JR . BOBBY L. RUSH. JAN SCHAKOWSKY. ELIOT L. ENGEL. EDWARD J. MARKEY. DIANA DEGETTE. DONNA M. CHRISTENSEN. 

Æ 


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