II 

112TH CONGRESS 

1ST SESSION S. 1751 

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. 

IN THE SENATE OF THE UNITED STATES 

OCTOBER 20, 2011 

Mr. HOEVEN (for himself, Mr. CONRAD, Mr. ENZI, Ms. LANDRIEU, Mr. BOOZMAN, Mr. NELSON of Nebraska, Mr. PORTMAN, Mr. MANCHIN, Mr. 

THUNE, and Mr. ROCKEFELLER) introduced the following bill; which was 

read twice and referred to the Committee on Environment and Public 

Works 

A BILL 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Coal Residuals Reuse 

5 and Management Act’’. 


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1 SEC. 2. AMENDMENT TO SUBTITLE D OF THE SOLID WASTE 

2 DISPOSAL ACT. 

3 (a) IN GENERAL.—Subtitle D of the Solid Waste Dis4 posal Act (42 U.S.C. 6941 et seq.) is amended by adding 

5 at the end the following new section: 

6 ‘‘SEC. 4011. MANAGEMENT AND DISPOSAL OF COAL COM7 BUSTION RESIDUALS. 

8 ‘‘(a) STATE PERMIT PROGRAMS FOR COAL COMBUS9 TION RESIDUALS.—Each State may adopt and implement 

10 a coal combustion residuals permit program. 

11 ‘‘(b) STATE ACTIONS.— 

12 ‘‘(1) NOTIFICATION.—Not later than 6 months 

13 after the date of enactment of this section (except 

14 as provided by the deadline identified under sub15 section (d)(2)(B)), the Governor of each State shall 

16 notify the Administrator, in writing, whether such 

17 State will adopt and implement a coal combustion 

18 residuals permit program. 

19 ‘‘(2) CERTIFICATION.— 

20 ‘‘(A) IN GENERAL.—Not later than 36 

21 months after the date of enactment of this sec22 tion (except as provided in subsections (f)(1)(A) 

23 and (f)(1)(C)), in the case of a State that has 

24 notified the Administrator that it will imple25 ment a coal combustion residuals permit pro26 gram, the head of the lead State agency responVerDate Mar 15 2010 04:08 Oct 22, 2011 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1751.IS S1751

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1 sible for implementing the coal combustion re2 siduals permit program shall submit to the Ad3 ministrator a certification that such coal com4 bustion residuals permit program meets the 

5 specifications described in subsection (c)(1). 

6 ‘‘(B) CONTENTS.—A certification sub7 mitted under this paragraph shall include— 

8 ‘‘(i) a letter identifying the lead State 

9 agency responsible for implementing the 

10 coal combustion residuals permit program, 

11 signed by the head of such agency; 

12 ‘‘(ii) identification of any other State 

13 agencies involved with the implementation 

14 of the coal combustion residuals permit 

15 program; 

16 ‘‘(iii) a narrative description that pro17 vides an explanation of how the State will 

18 ensure that the coal combustion residuals 

19 permit program meets the requirements of 

20 this section, including a description of the 

21 State’s— 

22 ‘‘(I) process to inspect or other23 wise determine compliance with such 

24 permit program; 


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1 ‘‘(II) process to enforce the re2 quirements of such permit program; 

3 and 

4 ‘‘(III) public participation proc5 ess for the promulgation, amendment, 

6 or repeal of regulations for, and the 

7 issuance of permits under, such per8 mit program; 

9 ‘‘(iv) a legal certification that the 

10 State has, at the time of certification, fully 

11 effective statutes and regulations necessary 

12 to implement a coal combustion residuals 

13 permit program that meets the specifica14 tions described in subsection (c)(1); and 

15 ‘‘(v) copies of State statutes and regu16 lations described in clause (iv). 

17 ‘‘(3) MAINTENANCE OF 4005(c) OR 3006 PRO18 GRAM.—In order to adopt or implement a coal com19 bustion residuals permit program under this section 

20 (including pursuant to subsection (f)), the State 

21 agency responsible for implementing a coal combus22 tion residuals permit program in a State shall main23 tain an approved program under section 4005(c) or 

24 an authorized program under section 3006. 

25 ‘‘(c) PERMIT PROGRAM SPECIFICATIONS.— 


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1 ‘‘(1) MINIMUM REQUIREMENTS.—The specifica2 tions described in this subsection for a coal combus3 tion residuals permit program are as follows: 

4 ‘‘(A) The revised criteria described in 

5 paragraph (2) shall apply to a coal combustion 

6 residuals permit program, except as provided in 

7 paragraph (3). 

8 ‘‘(B) Each structure shall be, in accord9 ance with generally accepted engineering stand10 ards for the structural integrity of such struc11 tures, designed, constructed, and maintained to 

12 provide for containment of the maximum vol13 umes of coal combustion residuals appropriate 

14 for the structure. If a structure is determined 

15 by the head of the agency responsible for imple16 menting the coal combustion residuals permit 

17 program to be deficient, the head of such agen18 cy has authority to require action to correct the 

19 deficiency according to a schedule determined 

20 by such agency. If the identified deficiency is 

21 not corrected according to such schedule, the 

22 head of such agency has authority to require 

23 that the structure close in accordance with sub24 section (h). 


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1 ‘‘(C) The coal combustion residuals permit 

2 program shall apply the revised criteria promul3 gated pursuant to section 4010(c) for location, 

4 design, groundwater monitoring, corrective ac5 tion, financial assurance, closure, and post-clo6 sure described in paragraph (2) and the speci7 fications described in this paragraph to surface 

8 impoundments. 

9 ‘‘(D) If a structure that is classified as 

10 posing a high hazard potential pursuant to the 

11 guidelines published by the Federal Emergency 

12 Management Agency entitled ‘Federal Guide13 lines for Dam Safety: Hazard Potential Classi14 fication System for Dams’ (FEMA Publication 

15 Number 333) is determined by the head of the 

16 agency responsible for implementing the coal 

17 combustion residuals permit program to be defi18 cient with respect to the structural integrity re19 quirement in subparagraph (B), the head of 

20 such agency has authority to require action to 

21 correct the deficiency according to a schedule 

22 determined by such agency. If the identified de23 ficiency is not corrected according to such 

24 schedule, the head of such agency has authority 


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1 to require that the structure close in accordance 

2 with subsection (h). 

3 ‘‘(E) New structures that first receive coal 

4 combustion residuals after the date of enact5 ment of this section shall be constructed with a 

6 base located a minimum of two feet above the 

7 upper limit of the natural water table. 

8 ‘‘(F) In the case of a coal combustion re9 siduals permit program implemented by a 

10 State, the State has the authority to inspect 

11 structures and implement and enforce such per12 mit program. 

13 ‘‘(G) In the case of a coal combustion re14 siduals permit program implemented by a 

15 State, the State has the authority to address 

16 wind dispersal of dust from coal combustion re17 siduals by requiring dust control measures, as 

18 determined appropriate by the head of the lead 

19 State agency responsible for implementing the 

20 coal combustion residuals permit program. 

21 ‘‘(2) REVISED CRITERIA.—The revised criteria 

22 described in this paragraph are— 

23 ‘‘(A) the revised criteria for design, 

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1 sure, and post-closure, for structures, includ2 ing— 

3 ‘‘(i) for new structures, and lateral ex4 pansions of existing structures, that first 

5 receive coal combustion residuals after the 

6 date of enactment of this section, the re7 vised criteria regarding design require8 ments described in section 258.40 of title 

9 40, Code of Federal Regulations; and 

10 ‘‘(ii) for all structures that receive 

11 coal combustion residuals after the date of 

12 enactment of this section, the revised cri13 teria regarding groundwater monitoring 

14 and corrective action requirements de15 scribed in subpart E of part 258 of title 

16 40, Code of Federal Regulations, except 

17 that, for the purposes of this paragraph, 

18 such revised criteria shall also include— 

19 ‘‘(I) for the purposes of detection 

20 monitoring, the constituents boron, 

21 chloride, conductivity, fluoride, mer22 cury, pH, sulfate, sulfide, and total 

23 dissolved solids; and 

24 ‘‘(II) for the purposes of assess25 ment monitoring, the constituents aluVerDate Mar 15 2010 04:08 Oct 22, 2011 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1751.IS S1751

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1 minum, boron, chloride, fluoride, iron, 

2 manganese, molybdenum, pH, sulfate, 

3 and total dissolved solids; 

4 ‘‘(B) the revised criteria for location re5 strictions described in— 

6 ‘‘(i) for new structures, and lateral ex7 pansions of existing structures, that first 

8 receive coal combustion residuals after the 

9 date of enactment of this section, sections 

10 258.11 through 258.15 of title 40, Code of 

11 Federal Regulations; and 

12 ‘‘(ii) for existing structures that re13 ceive coal combustion residuals after the 

14 date of enactment of this section, sections 

15 258.11 and 258.15 of title 40, Code of 

16 Federal Regulations; 

17 ‘‘(C) for all structures that receive coal 

18 combustion residuals after the date of enact19 ment of this section, the revised criteria for air 

20 quality described in section 258.24 of title 40, 

21 Code of Federal Regulations; 

22 ‘‘(D) for all structures that receive coal 

23 combustion residuals after the date of enact24 ment of this section, the revised criteria for fi25 nancial assurance described in subpart G of 


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1 part 258 of title 40, Code of Federal Regula2 tions; 

3 ‘‘(E) for all structures that receive coal 

4 combustion residuals after the date of enact5 ment of this section, the revised criteria for sur6 face water described in section 258.27 of title 

7 40, Code of Federal Regulations; 

8 ‘‘(F) for all structures that receive coal 

9 combustion residuals after the date of enact10 ment of this section, the revised criteria for rec11 ordkeeping described in section 258.29 of title 

12 40, Code of Federal Regulations; 

13 ‘‘(G) for landfills and other land-based 

14 units, other than surface impoundments, that 

15 receive coal combustion residuals after the date 

16 of enactment of this section, the revised criteria 

17 for run-on and run-off control systems de18 scribed in section 258.26 of title 40, Code of 

19 Federal Regulations; and 

20 ‘‘(H) for surface impoundments that re21 ceive coal combustion residuals after the date of 

22 enactment of this section, the revised criteria 

23 for run-off control systems described in section 

24 258.26(a)(2) of title 40, Code of Federal Regu25 lations. 


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1 ‘‘(3) APPLICABILITY OF CERTAIN REQUIRE2 MENTS.—A State may determine that one or more 

3 of the requirements of the revised criteria described 

4 in paragraph (2) is not needed for the management 

5 of coal combustion residuals in that State, and may 

6 decline to apply such requirement as part of its coal 

7 combustion residuals permit program. If a State de8 clines to apply a requirement under this paragraph, 

9 the State shall include in the certification under sub10 section (b)(2) a description of such requirement and 

11 the reasons such requirement is not needed in the 

12 State. If the Administrator determines that a State 

13 determination under this paragraph does not accu14 rately reflect the needs for the management of coal 

15 combustion residuals in the State, the Administrator 

16 may treat such State determination as a deficiency 

17 under subsection (d). 

18 ‘‘(d) WRITTEN NOTICE AND OPPORTUNITY TO REM19 EDY.— 

20 ‘‘(1) IN GENERAL.—The Administrator shall 

21 provide to a State written notice and an opportunity 

22 to remedy deficiencies in accordance with paragraph 

23 (2) if at any time the State— 

24 ‘‘(A) does not satisfy the notification re25 quirement under subsection (b)(1); 


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1 ‘‘(B) has not submitted a certification 

2 under subsection (b)(2); 

3 ‘‘(C) does not satisfy the maintenance re4 quirement under subsection (b)(3); or 

5 ‘‘(D) is not implementing a coal combus6 tion residuals permit program that meets the 

7 specifications described in subsection (c)(1). 

8 ‘‘(2) CONTENTS OF NOTICE; DEADLINE FOR RE9 SPONSE.—A notice provided under this subsection 

10 shall— 

11 ‘‘(A) include findings of the Administrator 

12 detailing any applicable deficiencies in— 

13 ‘‘(i) compliance by the State with the 

14 notification requirement under subsection 

15 (b)(1); 

16 ‘‘(ii) compliance by the State with the 

17 certification requirement under subsection 

18 (b)(2); 

19 ‘‘(iii) compliance by the State with the 

20 maintenance requirement under subsection 

21 (b)(3); and 

22 ‘‘(iv) the State coal combustion re23 siduals permit program in meeting the 

24 specifications described in subsection 

25 (c)(1); and 


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1 ‘‘(B) identify, in collaboration with the 

2 State, a reasonable deadline, which shall be not 

3 sooner than 6 months after the State receives 

4 the notice, by which the State shall remedy the 

5 deficiencies detailed under subparagraph (A). 

6 ‘‘(e) IMPLEMENTATION BY ADMINISTRATOR.— 

7 ‘‘(1) IN GENERAL.—The Administrator shall 

8 implement a coal combustion residuals permit pro9 gram for a State only in the following cir10 cumstances: 

11 ‘‘(A) If the Governor of such State notifies 

12 the Administrator under subsection (b)(1) that 

13 such State will not adopt and implement such 

14 a permit program. 

15 ‘‘(B) If such State has received a notice 

16 under subsection (d) and, after any review 

17 brought by the State under section 7006, fails, 

18 by the deadline identified in such notice under 

19 subsection (d)(2)(B), to remedy the deficiencies 

20 detailed in such notice under subsection 

21 (d)(2)(A). 

22 ‘‘(C) If such State informs the Adminis23 trator, in writing, that such State will no longer 

24 implement such a permit program. 


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1 ‘‘(2) REQUIREMENTS.—If the Administrator 

2 implements a coal combustion residuals permit pro3 gram for a State under paragraph (1), such permit 

4 program shall consist of the specifications described 

5 in subsection (c)(1). 

6 ‘‘(3) ENFORCEMENT.—If the Administrator im7 plements a coal combustion residuals permit pro8 gram for a State under paragraph (1), the authori9 ties referred to in section 4005(c)(2)(A) shall apply 

10 with respect to coal combustion residuals and struc11 tures and the Administrator may use such authori12 ties to inspect, gather information, and enforce the 

13 requirements of this section in the State. 

14 ‘‘(f) STATE CONTROL AFTER IMPLEMENTATION BY

15 ADMINISTRATOR.— 

16 ‘‘(1) STATE CONTROL.— 

17 ‘‘(A) NEW ADOPTION AND IMPLEMENTA18 TION BY STATE.—For a State for which the 

19 Administrator is implementing a coal combus20 tion residuals permit program under subsection 

21 (e)(1)(A), the State may adopt and implement 

22 such a permit program by— 

23 ‘‘(i) notifying the Administrator that 

24 the State will adopt and implement such a 

25 permit program; 


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1 ‘‘(ii) not later than 6 months after the 

2 date of such notification, submitting to the 

3 Administrator a certification under sub4 section (b)(2); and 

5 ‘‘(iii) receiving from the Adminis6 trator— 

7 ‘‘(I) a determination that the 

8 State coal combustion residuals per9 mit program meets the specifications 

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

11 ‘‘(II) a timeline for transition of 

12 control of the coal combustion residu13 als permit program. 

14 ‘‘(B) REMEDYING DEFICIENT PERMIT PRO15 GRAM.—For a State for which the Adminis16 trator is implementing a coal combustion re17 siduals permit program under subsection 

18 (e)(1)(B), the State may adopt and implement 

19 such a permit program by— 

20 ‘‘(i) remedying the deficiencies de21 tailed in the notice provided under sub22 section (d)(2)(A); and 

23 ‘‘(ii) receiving from the Adminis24 trator— 


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1 ‘‘(I) a determination that the de2 ficiencies detailed in such notice have 

3 been remedied; and 

4 ‘‘(II) a timeline for transition of 

5 control of the coal combustion residu6 als permit program. 

7 ‘‘(C) RESUMPTION OF IMPLEMENTATION

8 BY STATE.—For a State for which the Adminis9 trator is implementing a coal combustion re10 siduals permit program under subsection 

11 (e)(1)(C), the State may adopt and implement 

12 such a permit program by— 

13 ‘‘(i) notifying the Administrator that 

14 the State will adopt and implement such a 

15 permit program; 

16 ‘‘(ii) not later than 6 months after the 

17 date of such notification, submitting to the 

18 Administrator a certification under sub19 section (b)(2); and 

20 ‘‘(iii) receiving from the Adminis21 trator— 

22 ‘‘(I) a determination that the 

23 State coal combustion residuals per24 mit program meets the specifications 

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


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1 ‘‘(II) a timeline for transition of 

2 control of the coal combustion residu3 als permit program. 

4 ‘‘(2) REVIEW OF DETERMINATION.— 

5 ‘‘(A) DETERMINATION REQUIRED.—The 

6 Administrator shall make a determination 

7 under paragraph (1) not later than 90 days 

8 after the date on which the State submits a cer9 tification under paragraph (1)(A)(ii) or 

10 (1)(C)(ii), or notifies the Administrator that the 

11 deficiencies have been remedied pursuant to 

12 paragraph (1)(B)(i), as applicable. 

13 ‘‘(B) REVIEW.—A State may obtain a re14 view of a determination by the Administrator 

15 under paragraph (1) as if such determination 

16 was a final regulation for purposes of section 

17 7006. 

18 ‘‘(3) IMPLEMENTATION DURING TRANSITION.— 

19 ‘‘(A) EFFECT ON ACTIONS AND ORDERS.— 

20 Actions taken or orders issued pursuant to a 

21 coal combustion residuals permit program shall 

22 remain in effect if— 

23 ‘‘(i) a State takes control of its coal 

24 combustion residuals permit program from 

25 the Administrator under paragraph (1); or 


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1 ‘‘(ii) the Administrator takes control 

2 of a coal combustion residuals permit pro3 gram from a State under subsection (e). 

4 ‘‘(B) CHANGE IN REQUIREMENTS.—Sub5 paragraph (A) shall apply to such actions and 

6 orders until such time as the Administrator or 

7 the head of the lead State agency responsible 

8 for implementing the coal combustion residuals 

9 permit program, as applicable— 

10 ‘‘(i) implements changes to the re11 quirements of the coal combustion residu12 als permit program with respect to the 

13 basis for the action or order; or 

14 ‘‘(ii) certifies the completion of a cor15 rective action that is the subject of the ac16 tion or order. 

17 ‘‘(4) SINGLE PERMIT PROGRAM.—If a State 

18 adopts and implements a coal combustion residuals 

19 permit program under this subsection, the Adminis20 trator shall cease to implement the permit program 

21 implemented under subsection (e) for such State. 

22 ‘‘(g) EFFECT ON DETERMINATION UNDER 4005(c) 

23 OR 3006.—The Administrator shall not consider the im24 plementation of a coal combustion residuals permit pro25 gram by the Administrator under subsection (e) in making 


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1 a determination of approval for a permit program or other 

2 system of prior approval and conditions under section 

3 4005(c) or of authorization for a program under section 

4 3006. 

5 ‘‘(h) CLOSURE.—If it is determined, pursuant to a 

6 coal combustion residuals permit program, that a struc7 ture should close, the time period and method for the clo8 sure of such structure shall be set forth in a closure plan 

9 that establishes a deadline for completion and that takes 

10 into account the nature and the site-specific characteris11 tics of the structure to be closed. In the case of a surface 

12 impoundment, the closure plan shall require, at a min13 imum, the removal of liquid and the stabilization of re14 maining waste, as necessary to support the final cover. 

15 ‘‘(i) AUTHORITY.— 

16 ‘‘(1) STATE AUTHORITY.—Nothing in this sec17 tion shall preclude or deny any right of any State to 

18 adopt or enforce any regulation or requirement re19 specting coal combustion residuals that is more 

20 stringent or broader in scope than a regulation or 

21 requirement under this section. 

22 ‘‘(2) AUTHORITY OF THE ADMINISTRATOR.— 

23 ‘‘(A) IN GENERAL.—Except as provided in 

24 subsection (e) of this section and section 6005 

25 of this title, the Administrator shall, with reVerDate Mar 15 2010 04:08 Oct 22, 2011 Jkt 019200 PO 00000 Frm 00019 Fmt 6652 Sfmt 6201 E:\BILLS\S1751.IS S1751

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1 spect to the regulation of coal combustion re2 siduals, defer to the States pursuant to this sec3 tion. 

4 ‘‘(B) IMMINENT HAZARD.—Nothing in this 

5 section shall be construed to affect the author6 ity of the Administrator under section 7003 

7 with respect to coal combustion residuals. 

8 ‘‘(C) TECHNICAL AND ENFORCEMENT AS9 SISTANCE ONLY UPON REQUEST.—Upon re10 quest from the head of a lead State agency that 

11 is implementing a coal combustion residuals 

12 permit program, the Administrator may provide 

13 to such State agency only the technical or en14 forcement assistance requested. 

15 ‘‘(3) CITIZEN SUITS.—Nothing in this section 

16 shall be construed to affect the authority of a person 

17 to commence a civil action in accordance with sec18 tion 7002. 

19 ‘‘(j) MINE RECLAMATION ACTIVITIES.—A coal com20 bustion residuals permit program implemented under sub21 section (e) by the Administrator shall not apply to the uti22 lization, placement, and storage of coal combustion residu23 als at surface mining and reclamation operations. 

24 ‘‘(k) DEFINITIONS.—In this section: 


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1 ‘‘(1) COAL COMBUSTION RESIDUALS.—The 

2 term ‘coal combustion residuals’ means— 

3 ‘‘(A) the solid wastes listed in section 

4 3001(b)(3)(A)(i), including recoverable mate5 rials from such wastes; 

6 ‘‘(B) coal combustion wastes that are co7 managed with wastes produced in conjunction 

8 with the combustion of coal, provided that such 

9 wastes are not segregated and disposed of sepa10 rately from the coal combustion wastes and 

11 comprise a relatively small proportion of the 

12 total wastes being disposed in the structure; 

13 ‘‘(C) fluidized bed combustion wastes; 

14 ‘‘(D) wastes from the co-burning of coal 

15 with non-hazardous secondary materials pro16 vided that coal makes up at least 50 percent of 

17 the total fuel burned; and 

18 ‘‘(E) wastes from the co-burning of coal 

19 with materials described in subparagraph (A) 

20 that are recovered from monofills. 

21 ‘‘(2) COAL COMBUSTION RESIDUALS PERMIT

22 PROGRAM.—The term ‘coal combustion residuals 

23 permit program’ means a permit program or other 

24 system of prior approval and conditions that is 

25 adopted by or for a State for the management and 


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1 disposal of coal combustion residuals to the extent 

2 such activities occur in structures in such State. 

3 ‘‘(3) STRUCTURE.—The term ‘structure’ means 

4 a landfill, surface impoundment, or other land-based 

5 unit which may receive coal combustion residuals. 

6 ‘‘(4) REVISED CRITERIA.—The term ‘revised 

7 criteria’ means the criteria promulgated for munic8 ipal solid waste landfill units under section 4004(a) 

9 and under section 1008(a)(3), as revised under sec10 tion 4010(c) in accordance with the requirement of 

11 such section that the criteria protect human health 

12 and the environment.’’. 

13 (b) CONFORMING AMENDMENT.—The table of con14 tents contained in section 1001 of the Solid Waste Dis15 posal Act is amended by inserting after the item relating 

16 to section 4010 the following: 

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

17 SEC. 3. 2000 REGULATORY DETERMINATION. 

18 Nothing in this Act, or the amendments made by this 

19 Act, shall be construed to alter in any manner the Envi20 ronmental Protection Agency’s regulatory determination 

21 entitled ‘‘Notice of Regulatory Determination on Wastes 

22 from the Combustion of Fossil Fuels’’, published at 65 

23 Fed. Reg. 32214 (May 22, 2000), that the fossil fuel com24 bustion wastes addressed in that determination do not 


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1 warrant regulation under subtitle C of the Solid Waste 

2 Disposal Act (42 U.S.C. 6921 et seq.). 

Æ 


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