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[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 1751 Introduced in Senate (IS)]

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.

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

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, including a description of the 
                        State's--
                                    ``(I) process to inspect or 
                                otherwise determine compliance with 
                                such permit program;
                                    ``(II) process to enforce the 
                                requirements of such permit program; 
                                and
                                    ``(III) public participation 
                                process for the promulgation, 
                                amendment, or repeal of regulations 
                                for, and the issuance of permits under, 
                                such permit program;
                            ``(iv) a legal certification that the State 
                        has, at the time of certification, fully 
                        effective statutes and regulations necessary to 
                        implement a coal combustion residuals permit 
                        program that meets the specifications described 
                        in subsection (c)(1); and
                            ``(v) copies of State statutes and 
                        regulations 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 
                according to a schedule determined by such agency. If 
                the identified deficiency is not corrected according to 
                such schedule, 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) 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 according 
                to a schedule determined by such agency. If the 
                identified deficiency is not corrected according to 
                such schedule, the head of such agency has authority to 
                require that the structure close in accordance with 
                subsection (h).
                    ``(E) 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.
                    ``(F) 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.
                    ``(G) In the case of a coal combustion residuals 
                permit program implemented by a State, the State has 
                the authority to address wind dispersal of dust from 
                coal combustion residuals by requiring dust control 
                measures, as determined appropriate by the head of the 
                lead State agency responsible for implementing the coal 
                combustion residuals 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 and corrective 
                        action requirements described in subpart E of 
                        part 258 of title 40, Code of Federal 
                        Regulations, except that, for the purposes of 
                        this paragraph, such revised criteria shall 
                        also include--
                                    ``(I) for the purposes of detection 
                                monitoring, the constituents boron, 
                                chloride, conductivity, fluoride, 
                                mercury, pH, sulfate, sulfide, and 
                                total dissolved solids; and
                                    ``(II) for the purposes of 
                                assessment monitoring, the constituents 
                                aluminum, boron, chloride, fluoride, 
                                iron, manganese, molybdenum, pH, 
                                sulfate, and total dissolved solids;
                    ``(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;
                    ``(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;
                    ``(E) for all structures that receive coal 
                combustion residuals after the date of enactment of 
                this section, the revised criteria for surface water 
                described in section 258.27 of title 40, Code of 
                Federal Regulations;
                    ``(F) for all structures that receive coal 
                combustion residuals after the date of enactment of 
                this section, the revised criteria for recordkeeping 
                described in section 258.29 of title 40, Code of 
                Federal Regulations;
                    ``(G) for landfills and other land-based units, 
                other than surface impoundments, that receive coal 
                combustion residuals after the date of enactment of 
                this section, the revised criteria for run-on and run-
                off control systems described in section 258.26 of 
                title 40, Code of Federal Regulations; and
                    ``(H) for surface impoundments that receive coal 
                combustion residuals after the date of enactment of 
                this section, the revised criteria for run-off control 
                systems described in section 258.26(a)(2) 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--
                    ``(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
                            ``(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 closure plan that establishes a deadline for completion and 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.
                    ``(C) Technical and enforcement assistance only 
                upon request.--Upon request from the head of a lead 
                State agency that is implementing a coal combustion 
                residuals permit program, the Administrator may provide 
                to such State agency only the technical or enforcement 
                assistance requested.
            ``(3) Citizen suits.--Nothing in this section shall be 
        construed to affect the authority of a person to commence a 
        civil action in accordance with section 7002.
    ``(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--
                    ``(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) in accordance with the 
        requirement of such section that the criteria protect human 
        health and the environment.''.
    (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.).
                                 <all>
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