29–006 

113TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 113–148 

COAL RESIDUALS REUSE AND MANAGEMENT ACT OF 

2013 

JULY 10, 2013.—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 

DISSENTING VIEWS 

[To accompany H.R. 2218] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Energy and Commerce, to whom was referred 

the bill (H.R. 2218) to amend subtitle D of the Solid Waste Disposal Act to encourage recovery and beneficial use of coal combustion residuals and establish requirements for the proper management and disposal of coal combustion residuals that are protective 

of human health and the environment, 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 ............................................................................................ 13 

Background and Need for Legislation .................................................................... 13 

Hearings ................................................................................................................... 15 

Committee Consideration ........................................................................................ 15 

Committee Votes ...................................................................................................... 16 

Committee Oversight Findings ............................................................................... 22 

Statement of General Performance Goals and Objectives .................................... 22 

New Budget Authority, Entitlement Authority, and Tax Expenditures ............. 22 

Earmark, Limited Tax Benefits, and Limited Tariff Benefits ............................. 22 

Committee Cost Estimate ....................................................................................... 22 

Congressional Budget Office Estimate ................................................................... 22 

Federal Mandates Statement ................................................................................. 25 


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Duplication of Federal Programs ............................................................................ 25 

Disclosure of Directed Rule Makings ..................................................................... 25 

Advisory Committee Statement .............................................................................. 25 

Applicability to Legislative Branch ........................................................................ 25 

Section-by-Section Analysis of the Legislation ...................................................... 25 

Changes in Existing Law Made by the Bill, as Reported ..................................... 39 

Minority, Additional or Dissenting Views ............................................................. 57 

AMENDMENT

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE AND TABLE OF CONTENTS. 

(a) SHORT TITLE.—This Act may be cited as the ‘‘Coal Residuals Reuse and Management Act of 2013’’. 

(b) TABLE OF CONTENTS.—The table of contents for this Act is as follows: 

Sec. 1. Short title and table of contents. 

Sec. 2. Management and disposal of coal combustion residuals. 

Sec. 3. 2000 regulatory determination. 

Sec. 4. Technical assistance. 

Sec. 5. Federal Power Act. 

SEC. 2. MANAGEMENT AND DISPOSAL OF COAL COMBUSTION RESIDUALS. 

(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: 

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

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

may adopt, implement, and enforce a coal combustion residuals permit program if 

such State provides the notification required under subsection (b)(1), and the certification required under subsection (b)(2). 

‘‘(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)(3)(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 subsection (f)(1)(A)), 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 implementing 

agency shall submit to the Administrator a certification that such coal combustion residuals permit program meets the requirements described in subsection (c). 

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

‘‘(i) a letter identifying the lead State implementing agency, 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) an explanation of how the State 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; 

‘‘(III) public participation process for the promulgation, amendment, or repeal of regulations for, and the issuance of permits 

under, such permit program; 

‘‘(IV) statutes, regulations, or policies pertaining to public access 

to information, such as groundwater monitoring data; and 

‘‘(V) statutes, regulations, or policies pertaining to structural integrity or dam safety that may be applied to structures through 

such permit program; 

‘‘(iv) a certification that the State has in effect, at the time of certification, statutes or regulations necessary to implement a coal combustion residuals permit program that meets the requirements described 

in subsection (c); and 


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‘‘(v) copies of State statutes and regulations described in clause (iv). 

‘‘(C) UPDATES.—A State may update the certification as needed to reflect 

changes to the coal combustion residuals permit program. 

‘‘(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 implementing agency shall maintain an 

approved permit program or other system of prior approval and conditions 

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

‘‘(c) REQUIREMENTS FOR A COAL COMBUSTION RESIDUALS PERMIT PROGRAM.—A 

coal combustion residuals permit program shall consist of the following: 

‘‘(1) GENERAL REQUIREMENTS.— ‘‘(A) IN GENERAL.—The implementing agency shall— 

‘‘(i) apply the subset of the revised criteria described in paragraph (2) 

to owners or operators of structures, including surface impoundments, 

that receive coal combustion residuals on or after the date of enactment 

of this section; 

‘‘(ii) with respect to structures that are receiving coal combustion residuals as of the date of enactment of this section, take the actions required under paragraph (3); 

‘‘(iii) impose requirements for surface impoundments that do not 

meet certain criteria pursuant to paragraph (4); and 

‘‘(iv) require that closure of structures occur in accordance with paragraph (5). 

‘‘(B) STRUCTURAL INTEGRITY.— 

‘‘(i) ENGINEERING CERTIFICATION.—The implementing agency shall require that an independent registered professional engineer certify 

that— 

‘‘(I) the design of each structure that receives coal combustion residuals on or after the date of enactment of this section is in accordance with recognized and generally accepted good engineering 

practices for containment of the maximum volume of coal combustion residuals and liquids which can be impounded therein; and 

‘‘(II) the construction and maintenance of the structure will ensure structural stability. 

‘‘(ii) EMERGENCY ACTION PLAN.—The implementing agency shall require that the owner or operator of any structure that is a surface impoundment that receives coal combustion residuals on or after the date 

of enactment of this section and that is classified by the State 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) prepare and maintain an emergency 

action plan that identifies responsible persons and actions to be taken 

in the event of a dam safety emergency. 

‘‘(iii) INSPECTION.— 

‘‘(I) IN GENERAL.—The implementing agency shall require that 

structures that are surface impoundments that receive coal combustion residuals on or after the date of enactment of this section 

be inspected not less than annually by an independent registered 

professional engineer to assure that the design, operation, and 

maintenance of the surface impoundment is in accordance with recognized and generally accepted good engineering practices for containment of the maximum volume of coal combustion residuals and 

liquids which can be impounded therein, so as to ensure dam stability. 

‘‘(II) POTENTIALLY HAZARDOUS CONDITIONS.—The implementing 

agency shall require that if an inspection under subclause (I), or 

a periodic evaluation under clause (iv), reveals a potentially hazardous condition, the owner or operator of the structure shall immediately take action to mitigate the potentially hazardous condition and notify appropriate State and local first responders. 

‘‘(iv) PERIODIC EVALUATION.—The implementing agency shall require 

that structures that are surface impoundments that receive coal combustion residuals on or after the date of enactment of this section be 

periodically evaluated for appearances of structural weakness. 

‘‘(v) DEFICIENCY.— 

‘‘(I) IN GENERAL.—If the head of the implementing agency determines that a structure is deficient with respect to the requirements 

in clause (i), (iii), or (iv), the head of the agency has the authority 


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to require action to correct the deficiency according to a schedule 

determined by the agency. 

‘‘(II) UNCORRECTED DEFICIENCIES.—If a deficiency is not corrected 

according to the schedule, the head of the implementing agency has 

the authority to require that the structure close in accordance with 

paragraph (5). 

‘‘(III) DAM SAFETY CONSULTATION.—In the case of a structure 

that is a surface impoundment, the head of the implementing agency shall, in making a determination under subclause (I), consult 

with appropriate State dam safety officials. 

‘‘(C) LOCATION.—The implementing agency shall require that structures 

that first receive coal combustion residuals on or after the date of enactment of this section shall be constructed with a base located a minimum 

of 2 feet above the upper limit of the water table, unless it is demonstrated 

to the satisfaction of the implementing agency that— 

‘‘(i) the hydrogeologic characteristics of a structure and surrounding 

land would preclude such a requirement; and 

‘‘(ii) the function and integrity of the liner system will not be adversely impacted by contact with the water table. 

‘‘(D) WIND DISPERSAL.— ‘‘(i) IN GENERAL.—The implementing agency shall require that owners or operators of structures that receive coal combustion residuals on 

or after the date of enactment of this section address wind dispersal of 

dust by requiring cover, or by wetting coal combustion residuals with 

water to a moisture content that prevents wind dispersal, facilitates 

compaction, and does not result in free liquids. 

‘‘(ii) ALTERNATIVE METHODS.—Subject to the review and approval by 

the implementing agency, owners or operators of structures that receive coal combustion residuals on or after the date of enactment of this 

section may propose alternative methods to address wind dispersal of 

dust that will provide comparable or more effective control of dust. 

‘‘(E) PERMITS.—The implementing agency shall require that owners or operators of structures that receive coal combustion residuals on or after the 

date of enactment of this section apply for and obtain permits incorporating 

the requirements of the coal combustion residuals permit program. 

‘‘(F) PUBLIC AVAILABILITY OF INFORMATION.—Except for information with 

respect to which disclosure is prohibited under section 1905 of title 18, 

United States Code, the implementing agency shall ensure that— 

‘‘(i) documents for permit determinations are made available for public review and comment under the public participation process described in subsection (b)(2)(B)(iii)(III) or in subsection (e)(6), as applicable; 

‘‘(ii) final determinations on permit applications are made known to 

the public; and 

‘‘(iii) groundwater monitoring data collected under paragraph (2) is 

publicly available. 

‘‘(G) AGENCY AUTHORITY.— 

‘‘(i) IN GENERAL.—The implementing agency has the authority to— 

‘‘(I) obtain information necessary to determine whether the 

owner or operator of a structure is in compliance with the requirements of this subsection; 

‘‘(II) conduct or require monitoring and testing to ensure that 

structures are in compliance with the requirements of this subsection; and 

‘‘(III) enter, at reasonable times, any site or premise subject to 

the coal combustion residuals permit program for the purpose of inspecting structures and reviewing records relevant to the design, 

operation, and maintenance of structures. 

‘‘(ii) MONITORING AND TESTING.—If monitoring or testing is conducted 

under clause (i)(II) by or for the implementing agency, the implementing agency shall, if requested, provide to the owner or operator— 

‘‘(I) a written description of the monitoring or testing completed; 

‘‘(II) at the time of sampling, a portion of each sample equal in 

volume or weight to the portion retained by or for the implementing agency; and 

‘‘(III) a copy of the results of any analysis of samples collected 

by or for the implementing agency. 

‘‘(2) REVISED CRITERIA.—The subset of the revised criteria referred to in paragraph (1)(A)(i) are as follows: 


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‘‘(A) DESIGN REQUIREMENTS.—For new structures, and lateral expansions 

of existing structures, that first receive coal combustion residuals on or 

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, except that the leachate collection system requirements described in section 258.40(a)(2) of title 40, Code of Federal Regulations, do 

not apply to structures that are surface impoundments. 

‘‘(B) GROUNDWATER MONITORING AND CORRECTIVE ACTION.—For all structures that receive coal combustion residuals on or 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 

subparagraph, the 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, establishing a 

groundwater protection standard, and assessment of corrective measures, the constituents aluminum, boron, chloride, fluoride, iron, manganese, molybdenum, pH, sulfate, and total dissolved solids. 

‘‘(C) CLOSURE.—For all structures that receive coal combustion residuals 

on or after the date of enactment of this section, in a manner consistent 

with paragraph (5), the revised criteria for closure described in subsections 

(a) through (c) and (h) through (j) of section 258.60 of title 40, Code of Federal Regulations. 

‘‘(D) POST-CLOSURE.—For all structures that receive coal combustion residuals on or after the date of enactment of this section, the revised criteria 

for post-closure care described in section 258.61 of title 40, Code of Federal 

Regulations, except for the requirement described in subsection (a)(4) of 

that section. 

‘‘(E) LOCATION RESTRICTIONS.—The revised criteria for location restrictions described in— 

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

that first receive coal combustion residuals on or 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 on 

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

258.15 of title 40, Code of Federal Regulations. 

‘‘(F) AIR QUALITY.—For all structures that receive coal combustion residuals on or 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. 

‘‘(G) FINANCIAL ASSURANCE.—For all structures that receive coal combustion residuals on or 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. 

‘‘(H) SURFACE WATER.—For all structures that receive coal combustion residuals on or 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. 

‘‘(I) RECORDKEEPING.—For all structures that receive coal combustion residuals on or 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. 

‘‘(J) RUN-ON AND RUN-OFF CONTROL SYSTEMS FOR LAND-BASED UNITS.—For 

all landfills and other land-based units, other than surface impoundments, 

that receive coal combustion residuals on or 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. 

‘‘(K) RUN-OFF CONTROL SYSTEMS FOR SURFACE IMPOUNDMENTS.—For all 

surface impoundments that receive coal combustion residuals on or 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) PERMIT PROGRAM IMPLEMENTATION FOR EXISTING STRUCTURES.— 

‘‘(A) NOTIFICATION.—Not later than the date on which a State submits a 

certification under subsection (b)(2), not later than 30 months after the Administrator receives notice under subsection (e)(1)(A), or not later than 36 


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months after the date of enactment of this section with respect to a coal 

combustion residuals permit program that is being implemented by the Administrator under subsection (e)(3), as applicable, the implementing agency 

shall notify owners or operators of structures that are receiving coal combustion residuals as of the date of enactment of this section within the 

State of— 

‘‘(i) the obligation to apply for and obtain a permit under subparagraph (C); and 

‘‘(ii) the requirements referred to in subparagraph (B). 

‘‘(B) COMPLIANCE WITH CERTAIN REQUIREMENTS.—Not later than 12 

months after the date on which a State submits a certification under subsection (b)(2), not later than 42 months after the Administrator receives notice under subsection (e)(1)(A), or not later than 48 months after the date 

of enactment of this section with respect to a coal combustion residuals permit program that is being implemented by the Administrator under subsection (e)(3), as applicable, the implementing agency shall require owners 

or operators of structures that are receiving coal combustion residuals as 

of the date of enactment of this section to comply with— 

‘‘(i) the requirements under paragraphs (1)(B)(ii) and (iii), (1)(D), 

(2)(B), (2)(F), (2)(H), (2)(J), and (2)(K); and 

‘‘(ii) the groundwater recordkeeping requirement described in section 

258.29(a)(5) of title 40, Code of Federal Regulations. 

‘‘(C) PERMITS.— 

‘‘(i) PERMIT DEADLINE.—Not later than 48 months after the date on 

which a State submits a certification under subsection (b)(2), not later 

than 78 months after the Administrator receives notice under subsection (e)(1)(A), or not later than 84 months after the date of enactment of this section with respect to a coal combustion residuals permit 

program that is being implemented by the Administrator under subsection (e)(3), as applicable, the implementing agency shall issue, with 

respect to a structure that is receiving coal combustion residuals as of 

the date of enactment of this section, a final permit incorporating the 

requirements of the coal combustion residuals permit program, or a 

final denial for an application submitted requesting such a permit. 

‘‘(ii) APPLICATION DEADLINE.—The implementing agency shall identify, in collaboration with the owner or operator of a structure described 

in clause (i), a reasonable deadline by which the owner or operator 

shall submit a permit application under such clause. 

‘‘(D) INTERIM OPERATION.— 

‘‘(i) PRIOR TO DEADLINES.—With respect to any period of time on or 

after the date of enactment of this section but prior to the applicable 

deadline in subparagraph (B), the owner or operator of a structure that 

is receiving coal combustion residuals as of the date of enactment of 

this section may continue to operate such structure until such applicable deadline under the applicable authority in effect. 

‘‘(ii) PRIOR TO PERMIT.—Unless the implementing agency determines 

that the structure should close pursuant to paragraph (5), if the owner 

or operator of a structure that is receiving coal combustion residuals as 

of the date of enactment of this section meets the requirements referred 

to in subparagraph (B) by the applicable deadline in such subparagraph, the owner or operator may operate the structure until such time 

as the implementing agency issues, under subparagraph (C), a final 

permit incorporating the requirements of the coal combustion residuals 

permit program, or a final denial for an application submitted requesting such a permit. 

‘‘(4) REQUIREMENTS FOR SURFACE IMPOUNDMENTS THAT DO NOT MEET CERTAIN

CRITERIA.— 

‘‘(A) SURFACE IMPOUNDMENTS THAT REQUIRE ASSESSMENT OF CORRECTIVE

MEASURES WITHIN 10 YEARS OF THE DATE OF ENACTMENT.— 

‘‘(i) IN GENERAL.—In addition to the groundwater monitoring and corrective action requirements described in paragraph (2)(B), the implementing agency shall require a surface impoundment that receives coal 

combustion residuals on or after the date of enactment of this section 

to comply with the requirements in clause (ii) of this subparagraph and 

clauses (i) and (ii) of subparagraph (D) if the surface impoundment— 

‘‘(I) does not— 

‘‘(aa) have a liner system described in section 258.40(b) of 

title 40, Code of Federal Regulations; and 


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‘‘(bb) meet the design criteria described in section 

258.40(a)(1) of title 40, Code of Federal Regulations; and 

‘‘(II) within 10 years after the date of enactment of this section, 

is required under section 258.56(a) of title 40, Code of Federal Regulations, to undergo an assessment of corrective measures for any 

constituent covered under subpart E of part 258 of title 40, Code 

of Federal Regulations, or otherwise identified in paragraph 

(2)(B)(ii) of this subsection, for which assessment groundwater 

monitoring is required. 

‘‘(ii) DEADLINE TO MEET GROUNDWATER PROTECTION STANDARD.—Except as provided in subparagraph (C), the implementing agency shall 

require that the groundwater protection standard, for surface impoundments identified in clause (i) of this subparagraph, established by the 

implementing agency under section 258.55(h) or 258.55(i) of title 40, 

Code of Federal Regulations, for any constituent for which corrective 

measures are required shall be met— 

‘‘(I) as soon as practicable at the relevant point of compliance, as 

described in section 258.40(d) of title 40, Code of Federal Regulations; and 

‘‘(II) not later than 10 years after the date of enactment of this 

section. 

‘‘(B) SURFACE IMPOUNDMENTS SUBJECT TO A STATE CORRECTIVE ACTION REQUIREMENT AS OF THE DATE OF ENACTMENT.— 

‘‘(i) IN GENERAL.—In addition to the groundwater monitoring and corrective action requirements described in paragraph (2)(B), the implementing agency shall require a surface impoundment that receives coal 

combustion residuals on or after the date of enactment of this section 

to comply with the requirements in clause (ii) of this subparagraph and 

clauses (i) and (ii) of subparagraph (D) if the surface impoundment— 

‘‘(I) does not— 

‘‘(aa) have a liner system described in section 258.40(b) of 

title 40, Code of Federal Regulations; and 

‘‘(bb) meet the design criteria described in section 

258.40(a)(1) of title 40, Code of Federal Regulations; and 

‘‘(II) as of the date of enactment of this section, is subject to a 

State corrective action requirement. 

‘‘(ii) DEADLINE TO MEET GROUNDWATER PROTECTION STANDARD.—Except as provided in subparagraph (C), the implementing agency shall 

require that the groundwater protection standard, for surface impoundments identified in clause (i) of this subparagraph, established by the 

implementing agency under section 258.55(h) or 258.55(i) of title 40, 

Code of Federal Regulations, for any constituent for which corrective 

measures are required shall be met— 

‘‘(I) as soon as practicable at the relevant point of compliance, as 

described in section 258.40(d) of title 40, Code of Federal Regulations; and 

‘‘(II) not later than 8 years after the date of enactment of this 

section. 

‘‘(C) EXTENSION OF DEADLINE.— 

‘‘(i) IN GENERAL.—Except as provided in clause (ii) of this subparagraph, the deadline for meeting a groundwater protection standard 

under subparagraph (A)(ii) or (B)(ii) may be extended by the implementing agency, after opportunity for public notice and comment under 

the public participation process described in subsection (b)(2)(B)(iii)(III), 

or in subsection (e)(6) based on— 

‘‘(I) the effectiveness of any interim measures implemented by 

the owner or operator of the facility under section 258.58(a)(3) of 

title 40, Code of Federal Regulations; 

‘‘(II) the level of progress demonstrated in meeting the groundwater protection standard; 

‘‘(III) the potential for other adverse human health or environmental exposures attributable to the contamination from the surface impoundment undergoing corrective action; and 

‘‘(IV) the lack of available alternative management capacity for 

the coal combustion residuals and related materials managed in 

the impoundment at the facility at which the impoundment is located if the owner or operator has used best efforts, as necessary, 

to design, obtain any necessary permits, finance, construct, and 

render operational the alternative management capacity during the 


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time period for meeting a groundwater protection standard in subparagraph (A)(ii) or (B)(ii). 

‘‘(ii) EXCEPTION.—The deadline under subparagraph (A)(ii) or (B)(ii) 

shall not be extended if there has been contamination of public or private drinking water systems attributable to a surface impoundment undergoing corrective action, unless the contamination has been addressed by providing a permanent replacement water system. 

‘‘(D) ADDITIONAL REQUIREMENTS.— ‘‘(i) CLOSURE.—If the deadline under subparagraph (A)(ii), (B)(ii), or 

(C) is not satisfied, the surface impoundment shall cease receiving coal 

combustion residuals and initiate closure under paragraph (5). 

‘‘(ii) INTERIM MEASURES.— ‘‘(I) IN GENERAL.—Except as provided in subclause (II), not later 

than 90 days after the date on which the assessment of corrective 

measures is initiated, the owner or operator of a surface impoundment described in subparagraph (A) or (B) shall implement interim 

measures, as necessary, under the factors in section 258.58(a)(3) of 

title 40, Code of Federal Regulations. 

‘‘(II) IMPOUNDMENTS SUBJECT TO STATE CORRECTIVE ACTION RE- QUIREMENT AS OF THE DATE OF ENACTMENT.—Subclause (I) shall 

only apply to surface impoundments subject to a State corrective 

action requirement as of the date of enactment of this section if the 

owner or operator has not implemented interim measures, as necessary, under the factors in section 258.58(a)(3) of title 40, Code of 

Federal Regulations. 

‘‘(E) SURFACE IMPOUNDMENTS THAT REQUIRE ASSESSMENT OF CORRECTIVE

MEASURES MORE THAN 10 YEARS AFTER DATE OF ENACTMENT.— 

‘‘(i) IN GENERAL.—In addition to the groundwater monitoring and corrective action requirements described in paragraph (2)(B), the implementing agency shall require a surface impoundment that receives coal 

combustion residuals on or after the date of enactment of this section 

to comply with the requirements in clause (ii) if the surface impoundment— 

‘‘(I) does not— 

‘‘(aa) have a liner system described in section 258.40(b) of 

title 40, Code of Federal Regulations; and 

‘‘(bb) meet the design criteria described in section 

258.40(a)(1) of title 40, Code of Federal Regulations; and 

‘‘(II) more than 10 years after the date of enactment of this section, is required under section 258.56(a) title 40, Code of Federal 

Regulations, to undergo an assessment of corrective measures for 

any constituent covered under subpart E of part 258 of title 40, 

Code of Federal Regulations, or otherwise identified in paragraph 

(2)(B)(ii) of this subsection, for which assessment groundwater 

monitoring is required. 

‘‘(ii) REQUIREMENTS.— 

‘‘(I) CLOSURE.—The surface impoundments identified in clause (i) 

shall cease receiving coal combustion residuals and initiate closure 

in accordance with paragraph (5) after alternative management capacity at the facility is available for the coal combustion residuals 

and related materials managed in the impoundment. 

‘‘(II) BEST EFFORTS.—The alternative management capacity shall 

be developed as soon as practicable with the owner or operator 

using best efforts to design, obtain necessary permits for, finance, 

construct, and render operational the alternative management capacity. 

‘‘(III) ALTERNATIVE CAPACITY MANAGEMENT PLAN.—The owner or 

operator shall, in collaboration with the implementing agency, prepare a written plan that describes the steps necessary to develop 

the alternative management capacity and includes a schedule for 

completion. 

‘‘(IV) PUBLIC PARTICIPATION.—The plan described in subclause 

(III) shall be subject to public notice and comment under the public 

participation process described in subsection (b)(2)(B)(iii)(III) or in 

subsection (e)(6), as applicable. 

‘‘(5) CLOSURE.— 

‘‘(A) IN GENERAL.—If it is determined by the implementing agency that 

a structure should close because the requirements of a coal combustion residuals permit program are not being satisfied with respect to such strucVerDate Mar 15 2010 23:03 Jul 12, 2013 Jkt 029006 PO 00000 Frm 00008 Fmt 6659 Sfmt 6621 E:\HR\OC\HR148.XXX HR148

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ture, or if it is determined by the owner or operator 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 of closure as soon as practicable and that takes into account the nature and the 

site-specific characteristics of the structure to be closed. 

‘‘(B) SURFACE IMPOUNDMENT.—In the case of a surface impoundment, the 

closure plan under subparagraph (A) shall require, at a minimum, the removal of liquid and the stabilization of remaining waste, as necessary to 

support the final cover. 

‘‘(d) FEDERAL REVIEW OF STATE PERMIT PROGRAMS.— 

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

and an opportunity to remedy deficiencies in accordance with paragraph (3) if 

at any time the State— 

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

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

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

(b)(3); 

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

with respect to which the State has submitted a certification under subsection (b)(2), that meets the requirements described in subsection (c); 

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

with respect to which the State has submitted a certification under subsection (b)(2)— 

‘‘(i) that is consistent with such certification; and 

‘‘(ii) for which the State continues to have in effect statutes or regulations necessary to implement such program; or 

‘‘(F) does not make available to the Administrator, within 90 days of a 

written request, specific information necessary for the Administrator to ascertain whether the State has satisfied the requirements described in subparagraphs (A) through (E). 

‘‘(2) REQUEST.—If a request described in paragraph (1)(F) is proposed pursuant to a petition to the Administrator, the Administrator shall only make the 

request if the Administrator does not possess the information necessary to ascertain whether the State has satisfied the requirements described in subparagraphs (A) through (E) of such paragraph. 

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

paragraph (1) shall— 

‘‘(A) include findings of the Administrator detailing any applicable deficiencies described in subparagraphs (A) through (F) of paragraph (1); and 

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

which the State shall remedy such applicable deficiencies, which shall be— 

‘‘(i) in the case of a deficiency described in subparagraphs (A) through 

(E) of paragraph (1), not earlier than 180 days after the date on which 

the State receives the notice; and 

‘‘(ii) in the case of a deficiency described in paragraph (1)(F), not later 

than 90 days after the date on which the State receives the notice. 

‘‘(4) CRITERIA FOR DETERMINING DEFICIENCY OF STATE PERMIT PROGRAM.—In 

making a determination whether a State has failed to satisfy the requirements 

described in subparagraphs (A) through (E) of paragraph (1), or a determination 

under subsection (e)(1)(B), the Administrator shall consider, as appropriate— 

‘‘(A) whether the State’s statutes or regulations to implement a coal combustion residuals permit program are not sufficient to meet the requirements described in subsection (c) because of— 

‘‘(i) failure of the State to promulgate or enact new statutes or regulations when necessary; or 

‘‘(ii) action by a State legislature or court striking down or limiting 

such State statutes or regulations; 

‘‘(B) whether the operation of the State coal combustion residuals permit 

program fails to comply with the requirements of subsection (c) because 

of— 

‘‘(i) failure of the State to issue permits as required in subsection 

(c)(1)(E); 

‘‘(ii) repeated issuance of permits by the State which do not meet the 

requirements of subsection (c); 

‘‘(iii) failure of the State to comply with the public participation requirements of this section; or 

‘‘(iv) failure of the State to implement corrective action requirements 

as described in subsection (c)(2)(B); and 


emcdonald on DSK67QTVN1PROD with HEARING
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‘‘(C) whether the enforcement of a State coal combustion residuals permit 

program fails to comply with the requirements of this section because of— 

‘‘(i) failure to act on violations of permits, as identified by the State; 

or 

‘‘(ii) repeated failure by the State to inspect or otherwise determine 

compliance pursuant to the process identified in subsection 

(b)(2)(B)(iii)(I). 

‘‘(e) IMPLEMENTATION BY ADMINISTRATOR.— 

‘‘(1) FEDERAL BACKSTOP AUTHORITY.—The Administrator shall implement a 

coal combustion residuals permit program for a State only if— 

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

‘‘(B) the State has received a notice under subsection (d) and the Administrator determines, after providing a 30-day period for notice and public 

comment, that the State has failed, by the deadline identified in the notice 

under subsection (d)(3)(B), to remedy the deficiencies detailed in the notice 

under subsection (d)(3)(A); or 

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

no longer implement such a permit program. 

‘‘(2) REVIEW.—A State may obtain a review of a determination by the Administrator under this subsection as if the determination was a final regulation for 

purposes of section 7006. 

‘‘(3) OTHER STRUCTURES.—For structures that receive coal combustion residuals on or after the date of enactment of this section located on property within 

the exterior boundaries of a State that the State does not have authority or jurisdiction to regulate, the Administrator shall implement a coal combustion residuals permit program only for those structures. 

‘‘(4) REQUIREMENTS.—If the Administrator implements a coal combustion residuals permit program for a State under paragraph (1) or (3), the permit program shall consist of the requirements described in subsection (c). 

‘‘(5) ENFORCEMENT.— 

‘‘(A) IN GENERAL.—If the Administrator implements a coal combustion residuals permit program for a State under paragraph (1)— 

‘‘(i) the authorities referred to in section 4005(c)(2)(A) shall apply 

with respect to coal combustion residuals and structures for which the 

Administrator is implementing the coal combustion residuals permit 

program; and 

‘‘(ii) the Administrator may use those authorities to inspect, gather 

information, and enforce the requirements of this section in the State. 

‘‘(B) OTHER STRUCTURES.—If the Administrator implements a coal combustion residuals permit program under paragraph (3)— 

‘‘(i) the authorities referred to in section 4005(c)(2)(A) shall apply 

with respect to coal combustion residuals and structures for which the 

Administrator is implementing the coal combustion residuals permit 

program; and 

‘‘(ii) the Administrator may use those authorities to inspect, gather 

information, and enforce the requirements of this section for the structures for which the Administrator is implementing the coal combustion 

residuals permit program. 

‘‘(6) PUBLIC PARTICIPATION PROCESS.—If the Administrator implements a coal 

combustion residuals permit program for a State under this subsection, the Administrator shall provide a 30-day period for the public participation process required in paragraphs (1)(F)(i), (4)(C)(i), and (4)(E)(ii)(IV) of subsection (c). 

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

‘‘(1) STATE CONTROL.— 

‘‘(A) NEW ADOPTION, OR RESUMPTION OF, AND IMPLEMENTATION BY

STATE.—For a State for which the Administrator is implementing a coal 

combustion residuals permit program under subsection (e)(1)(A), or 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, after providing a 30-day period for notice 

and public comment, that the State coal combustion residuals perVerDate Mar 15 2010 23:03 Jul 12, 2013 Jkt 029006 PO 00000 Frm 00010 Fmt 6659 Sfmt 6621 E:\HR\OC\HR148.XXX HR148

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mit program meets the requirements described in subsection (c); 

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 only the deficiencies detailed in the notice pursuant to 

subsection (d)(3)(A); and 

‘‘(ii) receiving from the Administrator— 

‘‘(I) a determination, after providing a 30-day period for notice 

and public comment, 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. 

‘‘(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 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.—Program requirements of, and 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 

program requirements, actions, and orders until such time as— 

‘‘(i) the implementing agency changes the requirements of the coal 

combustion residuals permit program with respect to the basis for the 

action or order; or 

‘‘(ii) the State or the Administrator, whichever took the action or 

issued the order, 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)(1) 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) 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 subsections (d) and (e) and section 6005, 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 as affecting the authority of the Administrator under section 7003 with respect 

to coal combustion residuals. 

‘‘(C) 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 enforcement assistance requested. 

‘‘(D) CONCURRENT ENFORCEMENT.—Except as provided in subparagraph 

(C), the Administrator shall not have concurrent enforcement authority 

when a State is implementing a coal combustion residuals permit program, 


emcdonald on DSK67QTVN1PROD with HEARING
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including during any period of interim operation described in subsection 

(c)(3)(D). 

‘‘(E) OTHER AUTHORITY.—The Administrator shall not have authority to 

finalize the proposed rule published at pages 35128 through 35264 of volume 75 of the Federal Register (June 21, 2010). 

‘‘(F) OTHER RESPONSE AUTHORITY.—Nothing in this section shall be construed as affecting the authority of the Administrator under the Comprehensive Environmental Response, Compensation, and Liability Act of 

1980 (42 U.S.C. 9601 et seq.) with respect to coal combustion residuals. 

‘‘(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. 

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

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

reclamation operations. 

‘‘(j) 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 all of the authorities, activities, and procedures that comprise the system of prior approval and conditions implemented 

by or for a State to regulate the management and disposal of coal combustion 

residuals. 

‘‘(3) CODE OF FEDERAL REGULATIONS.—The term ‘Code of Federal Regulations’ 

means the Code of Federal Regulations (as in effect on the date of enactment 

of this section) or any successor regulations. 

‘‘(4) IMPLEMENTING AGENCY.—The term ‘implementing agency’ means the 

agency responsible for implementing a coal combustion residuals permit program for a State, which shall either be the lead State implementing agency 

identified under subsection (b)(2)(B)(i) or the Administrator pursuant to subsection (e). 

‘‘(5) PERMIT; PRIOR APPROVAL AND CONDITIONS.—Except as provided in subsections (b)(3) and (g), the terms ‘permit’ and ‘prior approval and conditions’ 

mean any authorization, license, or equivalent control document that incorporates the requirements of subsection (c). 

‘‘(6) 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). 

‘‘(7) STRUCTURE.— 

‘‘(A) IN GENERAL.—Except as provided in subparagraph (B), the term 

‘structure’ means a landfill, surface impoundment, or other land-based unit 

which receives, or is intended to receive, coal combustion residuals. 

‘‘(B) DE MINIMIS RECEIPT.—The term ‘structure’ does not include any 

land-based unit that receives only de minimis quantities of coal combustion 

residuals if the presence of coal combustion residuals is incidental to the 

material managed in the unit.’’. 

(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 


emcdonald on DSK67QTVN1PROD with HEARING
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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.). 

SEC. 4. TECHNICAL ASSISTANCE. 

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

affect the authority of a State to request, or the Administrator of the Environmental 

Protection Agency to provide, technical assistance under the Solid Waste Disposal 

Act (42 U.S.C. 6901 et seq.). 

SEC. 5. FEDERAL POWER ACT. 

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

affect the obligations of an owner or operator of a structure (as defined in section 

4011 of the Solid Waste Disposal Act, as added by this Act) under section 215(b)(1) 

of the Federal Power Act (16 U.S.C. 824o(b)(1)). 

PURPOSE AND SUMMARY

The legislation is a new approach to establishing a permit program under the Solid Waste Disposal Act (commonly referred to as 

the Resource Conservation and Recovery Act or RCRA). It establishes, in statute, a Federal standard of protection that consists of 

minimum requirements that will ensure protection of human 

health and the environment. The purpose of the legislation is to establish the minimum requirements for the proper management and 

disposal of materials generated by the combustion of coal that will 

be implemented through State-based permit programs. The minimum requirements in H.R. 2218 utilize the framework and Federal requirements of the existing municipal solid waste landfill 

management program in addition to other protective, minimum 

Federal requirements for the management and disposal of coal 

combustion residuals. The bill allows State permit programs to be 

more stringent than the minimum requirements outlined in the 

bill. The legislation also is intended to encourage recovery and beneficial use of coal combustion residuals. 

BACKGROUND AND NEED FOR LEGISLATION

EPA PROPOSED RULE

On June 21, 2010, the Environmental Protection Agency (EPA) 

promulgated a proposed rule to regulate coal combustion residuals 

(75 FR 35128) (the ‘‘Proposed Rule’’). In the Proposed Rule, EPA 

set out three regulatory options for management of coal combustion 

residuals. One proposal would create an enforceable permit program for coal combustion residuals under Subtitle C of RCRA. The 

other two proposals would impose self-implementing requirements 

under Subtitle D of RCRA. The second proposal, under Subtitle D, 

would require the automatic phase out of surface impoundments 

regardless of whether the surface impoundments were structurally 

sound or resulting in a release of pollutants to the environment. A 

third alternative also would regulate coal combustion residuals 

under Subtitle D, but would not require such a phase out of surface 

impoundments. 

Many stakeholders believe that EPA’s proposal to regulate combustion residuals under Subtitle C of RCRA (under which EPA regulates hazardous waste) placed an unwarranted stigma on coal 

combustion residuals and threatened their beneficial re-use. Furthermore, to regulate coal combustion residuals under Subtitle C of 

RCRA, EPA would have to reverse the regulatory determinations 


emcdonald on DSK67QTVN1PROD with HEARING
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1 In 1980, the ‘‘Bevill Amendment’’ precluded EPA from listing coal ash (and other large volume, low toxicity wastes) as hazardous waste until it had conducted a study and made a report 

to Congress regarding the characteristics and management of these materials, to determine 

whether regulation under subtitle C was warranted. In regulatory determinations issued in 

1993 and in 2000, pursuant to the Bevill Amendment, EPA has found that subtitle C regulation 

of coal ash is not warranted. In the 2000 regulatory determination EPA said that federal regulation under subtitle D would be appropriate. 

made under the Bevill Amendment.1 And it is not clear that EPA 

could legally reverse the regulatory determinations in that manner. 

Concern also was raised regarding EPA’s other proposals; specifically, that the new regulations under Subtitle D of RCRA would 

lead to the closure of structurally-sound surface impoundments not 

posing a pollution risk, a significant loss of jobs, and higher energy 

costs. 

BENEFICIAL USE

Coal combustion residuals are a valuable constituent in a variety 

of products and applications. The Proposed Rule and the suggestion 

that coal combustion residuals be regulated as a hazardous waste 

created significant uncertainty regarding beneficial reuse of coal 

combustion residuals. Companies engaged in the beneficial use of 

coal combustion residuals have testified before the Committee that 

EPA’s proposal to regulate disposed CCRs as hazardous waste has 

created a stigma in the beneficial use marketplace, causing contractors, engineers and architects who use or specify the use of coal 

combustion residuals in various products, such as concrete and wall 

board, and in various applications, such as road base, to reduce 

their demand for coal combustion residuals that are beneficially 

used, and also causing utilities in some cases to restrict their supply of coal combustion residuals for beneficial use. H.R. 2218 makes 

clear that disposed coal combustion residuals are not to be regulated as hazardous waste which should remove the stigma that has 

been negatively impacting the beneficial use marketplace. The 

Committee intends to promote the environmental and economic 

benefits of a robust beneficial use market because beneficial use 

conserves natural resources, improves the durability and strength 

of manufactured products and structures, reduces greenhouse gas 

emissions, lessens the need for waste disposal units, and provides 

significant domestic economic benefits. 

LITIGATION

On April 5, 2012, several environmental groups filed a lawsuit in 

the United States District Court for the District of Columbia seeking to compel EPA to issue a final rule to regulate coal combustion 

residuals. Several other stakeholders have since joined the litigation including two companies that beneficially reuse coal combustion residuals. The environmental plaintiffs requested that the 

Court order EPA to complete the rulemaking for coal combustion 

residuals within six months. EPA notified the Court that because 

of the complexity of the rule and because the Agency received almost 450,000 comments on the Proposed Rule, the Agency needs 

more time than six months to promulgate a legally defensible rule. 

It is the Committee’s expectation that H.R. 2218 would provide a 

legislative solution and resolve the pending litigation. 


emcdonald on DSK67QTVN1PROD with HEARING
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BACKGROUND

H.R. 2218 is similar to H.R. 2273, which passed the House during the 112th Congress on October 14, 2011, and was introduced 

in the Senate as S. 1751 by Senators Hoeven and Conrad. The text 

of H.R. 2273 was included as an amendment to H.R. 4348, the 

‘‘Surface Transportation Extension Act of 2012, Part II.’’ Senators 

Hoeven and Baucus introduced a revised version, S. 3512, on August 2, 2012. S. 3512 had 24 original cosponsors, twelve Democrats 

and twelve Republicans. The text of S. 3512 was included in H.R. 

3409, which passed the House on September 21 2012. The Subcommittee on Environment and the Economy held a hearing on a 

Discussion Draft, the ‘‘Coal Ash Recycling and Oversight Act of 

2013,’’ which was the same text as S. 3512. H.R. 2218 is the product of additional bi-partisan, bi-cameral, and inter-branch discussions regarding the management and disposal of coal combustion 

residuals. 

HEARINGS

On April 11, 2013, the Subcommittee on Environment and the 

Economy held a hearing on a ‘‘Discussion Draft, the Coal Ash Recycling and Oversight Act of 2013.’’ The Subcommittee received testimony from: 

• Mathy Stanislaus, Assistant Administrator of the Office of 

Solid Waste and Emergency Response, United States Environmental Protection Agency; 

• Robert J. Martineau, Jr., Commissioner, Tennessee Department of Environment and Conservation; 

• Stephen A. Cobb, P.E., Chief, Governmental Hazardous 

Waste Branch Land Division, Alabama Department of Environmental Management; 

• Susan Parker Bodine, Partner, Barnes & Thornburg LLP; 

• Lisa Evans, Senior Administrative Counsel, Earthjustice; 

and, 

• Jack Spadaro, Mine Safety & Health and Environmental 

Consultant. 

COMMITTEE CONSIDERATION

On June 3, 2013, Representative David McKinley introduced 

H.R. 2218, the ‘‘Coal Residuals Reuse and Management Act of 

2013.’’ On June 5 and 6, 2013, the Subcommittee on Environment 

and the Economy met in open markup session and by voice vote 

forwarded the bill, without amendment, to the full Committee for 

consideration. During the subcommittee markup no amendments 

were offered. 

On June 18 and 19, 2013, the full Committee on Energy and 

Commerce met in open markup session and considered H.R. 2218. 

During the markup, six amendments were offered and one, offered 

by Mr. Shimkus, was adopted by voice vote. On June 19, 2013, the 

Committee ordered H.R. 2218 favorably reported to the House, as 

amended, by a record vote of 31 ayes and 16 nays. 


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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 five 

record votes taken in connection with ordering H.R. 2218 reported. 

A motion by the Chair to order H.R. 2218 reported to the House, 

as amended, was agreed to by a recorded vote of 31 ayes and 16 

nays. The following reflects the recorded votes taken during the 

Committee consideration: 


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emcdonald on DSK67QTVN1PROD with HEARINGInsert offset folio 20 here HR148.001

COMMITTEE ON ENERGY AND COMMERCE - 113TH CONGRESS 

ROLL CALL VOTE # 15 

BILL: H.R. 2218, the "Coal Residuals Reuse and Management Act of20l3" 

AMENDMENT: An amendment offered by Mr. Green, No.2, to require an implementing agency and 

structures to meet requirements as necessary to protect human health and the environment. 

DISPOSITION: NOT AGREED TO, bya roll call vote of 19 yeas and 25 nays. 

REPRESENTATIVE YEAS NAYS PRESENT REPRESENTATIVE YEAS NAYS PRESENT 

[Mr. Upton X Mr. Waxman X 

Mr. Hall X Mr.Dingell X 

Mr. Barton Mr. Markey 

Mr. Whitfield X Mr. Pallone 

Mr. Shimkus X Mr. Rush X 

Mr. Pitts X Ms. Eshoo X 

Mr. Walden X Mr. Engel X 

Mr. Terry X Mr. Green X 

Mr. Rogers X Ms. DeGette 

Mr. Murphy X Mrs. Capps X 

Mr. Burgess Mr. Doyle X 

Mrs. Blackburn Ms. Schakowsky X 

Mr. Gingrey X Mr. Matheson X 

Mr. Scalise X Mr. Butterfield X 

Mr. Latta X Mr. Barrow X 

Mrs. McMonis Rodgers Ms. Matsui X 

Mr. Harper X Ms. Christensen X 

Mr. Lance X Ms. Castor X 

Mr. Cassidy X Mr. Sarbanes X 

Mr.Guthrie X Mr. McNerney X 

Mr. Olson X Mr. Braley X 

Mr. McKinley X Mr. Welch 

Mr. Gardner Mr. Lujan 

Mr. Pompeo X Mr. Tonko X 

Mr. Kinzinger X 

Mr. Griffith X 

Mr. Bilirakis X 

Mr. Johnson X 

Mr. Long X 

Mrs. Ellmers X 

06/19/2013 
18 


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COMMITTEE ON ENERGY AND COMMERCE -- 1 13TH CONGRESS 

ROLL CALL VOTE # 16 

BILL: H.R. 2218, the "Coal Residuals Reuse and Management Act 0[2013" 

AMENDMENT: An amendment offered by Mr. Rush, No.3, to provide that if the Administrator determines 

that a stmcture is in violation of a State coal combustion residuals permit program, and the 

State has not taken appropriate action to enforce such permit program with respect to such 

structure, the Administrator may inspect such structure and enforce the requirements of such 

permit program with respect to such stmcture. 

DISPOSITION: NOT AGREED TO, by a roll call votc of 19 yeas and 24 nays. 

REPRESENT A TIVE YEAS NAYS PRESENT REPRESENTATIVE YEAS NAYS PRESENT 

Mr. Upton X Mr. Waxman X 

Mr. Hall X Mr. Dingell X 

Mr. Barton X Mr.Markey 

Mr. Whitfield Mr. Pallone 

Mr. Shimkus X Mr. Rush X 

Mr. Pitts X Ms. Eshoo X 

Mr. Walden X Mr. Engel X 

Mr. Terry X Mr. Green 

Mr. Rogers X Ms. DeGette X 

Mr. Murphy X Mrs. Capps X 

Mr. Burgess Mr. Doyle X 

Mrs. Blackburn Ms. Schakowsky X 

Mr. Gingrey Mr. Matheson X 

Mr. Scalise X Mr. Butterfield X 

Mr. Latta X Mr. Barrow X 

Mrs. McMorris Rodgers Ms. Matsui X 

Mr. Harper X Ms. Christensen X 

Mr. Lance X Ms. Castor X 

Mr. Cassidy X Mr. Sarbanes X 

Mr. Guthrie X Mr. McNerney X 

Mr. Olson X Mr. Braley X 

Mr. McKinley X Mr. Welch 

Mr. Gardner Mr. Lujan 

Mr. Pompeo X Mr. Tonka X 

Mr. Kinzinger X 

Mr. Griffith X 

Mr. Bilirakis X 

Mr. Johnson X 

Mr. Long X 

Mrs. Ellmers X 

06119/2013 
19 


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COMMITTEE ON ENERGY AND COMMERCE -- 113TH CONGRESS 

ROLL CALL VOTE # 17 

BILL: H.R. 2218, the "Coal Residuals Reuse and Management Act 0[2013" 

AMENDMENT: An amendment offered by Mr. Waxman. No.4, to provide that the implementing agency 

shall require that all wet disposal structures meet criteria for design, construction, operation, 

and maintenance sufficient to prevent groundwater contamination. 

DISPOSITION: NOT AGREED TO, by a roll call vote of 19 yeas and 28 nays. 

REPRESENT A TlVE YEA 

Mr. Upton X Mr. Waxman X 

Mr. Hall X Mr. Dingell X 

Mr. Barton X Mr.Markey 

IMr. Whitfield X Mr. Pallone 

Mr. Shimkus X Mr. Rush 

Mr.Pitts X Ms. Eshoo X 

Mr. Walden X Mr. Engel X 

Mr. Teny X Mr. Green X 

Mr. Rogers X Ms. DeGette X 

Mr. Murphy X Mrs. Capps X 

Mr. Burgess Mr. Doyle X 

lackburn Ms. Schakowsky X 

Mr. Gingrey Mr.Matheson X 

Mr. Scalise X Mr. Butterfield X 

Mr. Latta X Mr. Barrow X 

Mrs. McMorris Rodgers X Ms. Matsui X 

Mr. Harper X Ms. Christensen X 

Mr. Lance X Ms. Castor X 

Mr. Cassidy X Mr. Sarbanes X 

Mr. Guthrie X Mr. McNerney X 

Mr. Olson X Mr. Braley X 

Mr. McKinley X Mr. Welch 

Mr. Gardner X Mr. Lujan X 

Mr. Pompeo X Mr. Tonko X 

Mr. Kinzinger X 

Mr. Griffith X 

Mr. Bilirakis X 

Mr. Johnson X 

Mr. Lnng I X 

Mrs. Ellmers I X 

06119/2013 
20 


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COMMITTEE ON ENERGY AND COMMERCE -- 113TH CONGRESS 

ROLL CALL VOTE # 18 

BILL: H.R. 2218, the "Coal Residuals Reuse and Management Act of 20 13" 

AMENDMENT: An amendment offered by Ms. Christensen, No.5, to provide that implementing agency 

shall ensure that the coal combustion residuals permit program does not adversely impact 

vulnerable populations and to define the term "vulnerable populations." 

DISPOSITION: NOT AGREED TO, by a roll call vote of21 yeas and 27 nays. 

EPRESENT ATIVE YEAS NAYS PRESENT REPRESENT A TIVE YEAS NAYS PRESENT 

Mr. Upton X Mr. Waxman X 

Mr. Hall X Mr. Dingell X 

!Mr. Barton X Mr. Markey 

!Mr. Whitfield X Mr. Pallone 

Mr. Shimkus X Mr. Rush 

Mr. Pitts X Ms. Eshoo X 

Mr. Walden X Mr. Engel X 

Mr. Terry X Mr. Green X 

Mr. Rogers X Ms. DeGette X 

Mr. Murphy X Mrs. Capps X 

Mr. Burgess Mr. Doyle X 

Mrs. Blackburn Ms. Schakowsky X 

Mr. Gingrey X Mr. Matheson I X 

Mr. Scalise X Mr. Butterfield X 

Mr.Latta X Mr. Barrow X 

Mrs. McMonis Rodgers X Ms. Matsui XMr. Harper X Ms. Christensen X 

Mr. Lance X Ms. Castor X 

Mr. Cassidy X Mr. Sarbanes X 

Mr. Guthrie X Mr. McNerney X 

Mr. Olson Mr. Braley X 

Mr. McKinley X Mr. Welch X 

Mr. Gardner X Mr. Lujan X 

Mr. Pompeo X Mr. Tonko X 

Mr. Kinzinger X 

Mr. Griffith X 

Mr. Bilirakis X 

Mr. Johnson X 

Mr. Long X 

Mrs. Ellmers X 

0611912013 
21 


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COMMITTEE ON ENERGY AND COMMERCE -- 113TR CONGRESS 

ROLL CALL VOTE # 19 

BILL: R.N. 2218, the "Coal Residuals Reuse and Management Act of 20 13" 

AMENDMENT: A motion by Mr. Upton to order H.R. 2218 favorably reported to the House, as amended. 

(Final Passage) 

DISPOSITION: AGREED TO, by a roll call vote of31 yeas and 16 nays. 

RESENTATIVE 

~ NAYS PRESENT REPRESENTATIVE YEAS NAYS PRESENT 

Mr. Upton Mr. Waxman X 

Mr. Hall X Mr. Dingell X 

Mr. Barton X Mr.Markey 

Mr. Whitfield X Mr. Pallone 

Mr. Shimkus X Mr. Rush 

Mr. Pitts X Ms. Eshoo X 

Mr. Walden X Mr. Engel X 

Mr. Terry X Mr. Green X 

Mr. Rogers X Ms. DeGette X 

Mr. Murphy X Mrs. Capps X 

Mr. Burgess Mr. Doyle X 

Mrs. Blackburn Ms. Schakowsky X 

Mr. Gingrey X Mr. Matheson X 

Mr. Scalise X Mr. Butterfield X 

Mr. Latta X Mr. Barrow X 

Mrs. McMorris Rodgers X Ms. Matsui X 

Mr. Harper X Ms. Christensen 

Mr. Lance X Ms. Castor X 

Mr. Cassidy X Mr. Sarbanes X 

Mr. Guthrie X Mr. McNerney X 

Mr. Olson Mr. Braley X 

Mr.McKinley X Mr. Welch X 

Mr. Gardner X Mr. Lujan X 

Mr. Pompeo X Mr. Tonka X 

Mr. Kinzinger X I Mr. Griffith X 

Mr. Bilirakis X 

Mr. Johnson X 

Mr. Long X 

Mrs. Ellmers X 

06119/2013 
22 

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 11, 2013, and made findings that are reflected in this report. 

STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

The goal and objective of H.R. 2218 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. 2218, the 

‘‘Coal Ash Recycling and Oversight Act of 2013,’’ would result in no 

new or increased budget authority, entitlement authority, or tax 

expenditures or revenues. 

EARMARK, LIMITED TAX BENEFITS, AND LIMITED TARIFF BENEFITS

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

House of Representatives, the Committee finds that H.R. 2218, the 

‘‘Coal Ash Recycling and Oversight Act of 2013,’’ contains no earmarks, limited tax benefits, or limited tariff benefits. 

COMMITTEE COST ESTIMATE

The Committee adopts as its own the cost estimate prepared by 

the Director of the Congressional Budget Office pursuant to section 

402 of the Congressional Budget Act of 1974. 

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 

the Congressional Budget Office pursuant to section 402 of the 

Congressional Budget Act of 1974: 

JUNE 28, 2013. 

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. 2218, the Coal Residuals 

Reuse and Management Act of 2013. 

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. 2218—Coal Residuals Reuse and Management Act of 2013 

Summary: H.R. 2218 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 


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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. 2218 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 implementing this legislation would cost $2 

million over the 2014–2018 period, subject to the availability of appropriated funds. Enacting H.R. 2218 would not affect direct spending or revenues; therefore, pay-as-you-go procedures do not apply. 

H.R. 2218 would impose intergovernmental mandates as defined 

in the Unfunded Mandates Reform Act (UMRA) by expanding an 

existing preemption of state laws that regulate greenhouse gases 

from motor vehicles and by requiring states to notify EPA whether 

they will adopt and implement a permit program for CCR. The bill 

also would impose an intergovernmental and private-sector mandate on owners and operators of structures that receive CCR by establishing minimum federal requirements for the management and 

disposal of CCR. Based on information from EPA, a small number 

of public entities would be required to comply with the federal 

standards, and CBO estimates that the cost for those entities to 

comply would fall below UMRA’s annual threshold for intergovernmental mandates ($75 million in 2013, adjusted annually for inflation). However, given the number of private-sector entities that 

would need to take corrective action and the costs to comply, CBO 

estimates that the cost of the mandates would probably exceed the 

annual threshold established in UMRA for private-sector mandates 

($150 million in 2013, adjusted annually for inflation). 

Estimated cost to the Federal Government: CBO estimates that 

implementing H.R. 2218 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. 

2218 will be enacted by the beginning of fiscal year 2014 and that 

the necessary amounts will be made available from appropriated 

funds. 

Certification of State CCR Permit Programs and CCR Permitting 

on Tribal Lands 

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 probably 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 

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. 

In addition, this legislation would require EPA to implement a 

CCR permit program on tribal lands. Because this legislation 

would not provide EPA with the authority to substantially review 


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certifications and because there are only three coal-generating stations located on tribal lands that would require permits, CBO estimates that EPA’s workload for this activity over the 2014–2018 period would not be significant. 

Based on information from EPA, CBO estimates that, over the 

2014–2018 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. 2218 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 2018—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 2018. 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 2018, CBO estimates that work 

would cost $1 million to $2 million in 2016. (Additional reviews and 

EPA costs could occur after 2018.) 

Pay-As-You-Go considerations: None. 

Intergovernmental and private-sector impact: H.R. 2218 would 

impose intergovernmental mandates as defined in UMRA by expanding an existing preemption of state laws that regulate greenhouse gases from motor vehicles and by requiring states to tell 

EPA whether they will adopt and implement a permit program for 

CCR. Although the preemption would limit the application of state 

law, CBO estimates that it would impose no duty on state governments that would result in additional spending. CBO estimates 

that the cost, if any, of the notification requirement would be small. 

If states chose to adopt and implement a CCR program, any costs 

they incurred would result from participation in a voluntary federal 

program and not from the requirements of an intergovernmental 

mandate. 

By establishing minimum federal requirements for the management and disposal of CCR, the bill would impose an intergovernmental and private-sector mandate on owners and operators of 

structures that receive CCR. Based on information from EPA, a 

small number of public entities would be required to comply with 

the federal standards, and CBO estimates that the cost for those 

entities to comply would fall below UMRA’s annual threshold for 

intergovernmental mandates ($75 million in 2013, adjusted annually for inflation). 

The cost of the mandate on the private sector would depend on 

the number of entities that would need to take corrective action. 

Based on information from EPA and industry sources, CBO estiVerDate Mar 15 2010 23:03 Jul 12, 2013 Jkt 029006 PO 00000 Frm 00024 Fmt 6659 Sfmt 6602 E:\HR\OC\HR148.XXX HR148

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mates that those costs would amount to $150 million or more annually. Consequently, the cost of the mandates would probably exceed 

the annual threshold established in UMRA for private-sector mandates ($150 million in 2013, adjusted annually for inflation). 

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

Susan Willie; Impact on State, Local, and Tribal Governments: Melissa Merrell; Impact on the Private Sector: Amy Petz. 

Estimate approved by: Theresa Gullo, Deputy Assistant Director 

for Budget Analysis. 

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. 

DUPLICATION OF FEDERAL PROGRAMS

No provision of H.R. 2218 establishes or reauthorizes a program 

of the Federal Government known to be duplicative of another Federal program, a program that was included in any report from the 

Government Accountability Office to Congress pursuant to section 

21 of Public Law 111–139, or a program related to a program identified in the most recent Catalog of Federal Domestic Assistance. 

DISCLOSURE OF DIRECTED RULE MAKINGS

The Committee estimates that enacting H.R. 2218 does not specifically direct to be completed specific rule making within the 

meaning of 5 U.S.C. 551. 

ADVISORY COMMITTEE STATEMENT

No advisory committees within the meaning of section 5(b) of the 

Federal Advisory Committee Act were created by this legislation. 

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

Section 1. Short title and table of contents 

This section provides the short title of ‘‘Coal Residuals Reuse and 

Management Act of 2013’’ and identifies the sections of the bill as 

follows: Section 1, Short Title and Table of Contents; Section 2, 

Management and Disposal of Coal Combustion Residuals; Section 

3, 2000 Regulatory Determination; Section 4, Technical Assistance, 

and Section 5, Federal Power Act. 

Section 2. Management and disposal of coal combustion residuals 

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. 


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

whether to adopt and implement a coal combustion residuals 

(CCRs) permit program. It is the intent of the Committee that such 

a permit program be adopted and implemented in every State that 

generates, stores, disposes of, or uses CCRs. The Committee believes that States are best situated to create a permit program, and 

the Committee intends to provide States flexibility regarding their 

individual permit programs while ensuring that States have the 

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

that meets the minimum requirements set out in this bill. 

Subsection (b) of new section 4011 sets out certain 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 

the Administrator of the EPA that it intends to do so within six 

months of enactment. 

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, that the permit program meets the specifications set out in this section. 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, a description of the State’s process to 

inspect and enforce the permit program, the public participation 

process for promulgation of regulations and issuance of permits, 

and a description of the State statutes, regulations, or policies regarding: public access to information and structural integrity or 

dam safety. 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 or regulations necessary to carry 

out the permit program. The Committee expects that States will 

have the appropriate statutes or regulations in effect at the time 

of the certification and will provide copies of the statutes and regulations to the Administrator. The Committee intends that States 

will promulgate statutes and regulations necessary to implement a 

coal combustion residuals permit program. The Committee acknowledges that a State may need to update the certification as 

necessary to reflect changes to the permit program. 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. It is the view of the Committee that 

States with an approved program under section 4005(c) or an authorized program under section 3006 of the Solid Waste Disposal 

Act already have adequately demonstrated to the Administrator 

that they are capable of administering such permit programs and 

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essary. Upon submission of its certification, the Committee intends 

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

a coal combustion residuals permit program. The Committee intends that the requirements in subsection (c) are minimum national criteria to ensure protection of human health and the environment, and they comprise a Federal standard of protection for 

the regulation of coal combustion residuals. The Committee believes that permit programs that incorporate the minimum requirements in the bill will be protective of human health and the environment. Paragraph (c)(1) describes the specifications for a permit 

program as follows. 

Paragraph (c)(1) of new section 4011 requires that specific provisions of the revised criteria set out in paragraph (c)(2) be applied 

to owners or operators of structures, including surface impoundments, that receive coal combustion residuals. Paragraph (c)(1) also 

requires that structures that receive coal combustion residuals as 

of the date of enactment take actions required under paragraph 

(c)(3), imposes requirements for surface impoundments that do not 

meet the criteria in paragraph (c)(4), and requires that closure of 

structures occur in accordance with paragraph (c)(5). 

Subparagraph (c)(1)(B) of new section 4011 requires structural 

stability assessments for all structures used for the storage and 

disposal of coal combustion residuals. This subparagraph requires 

that permit programs have an independent, registered, professional 

engineer certify that the design of each structure is in accordance 

with recognized and generally accepted good engineering practices 

for containment of the maximum volume of coal combustion residuals and liquids that can be impounded therein. An independent, 

registered, professional engineer also must certify that the construction and maintenance will ensure structural stability. 

The Committee intends that ‘‘recognized and generally accepted 

good engineering practices’’ be defined in the same manner as EPA 

defined the term in the Proposed Rule as ‘‘engineering, operation, 

or maintenance activities based on established codes, standards, 

published technical reports or recommended practices or a similar 

document.’’ EPA further explained that ‘‘recognized and generally 

accepted good engineering practices detail generally approved ways 

to perform specific engineering, inspection or mechanical integrity 

activities.’’ The Committee intends that the term ‘‘independent’’ 

also has the meaning attributed to it by EPA in the Proposed Rule 

and means a registered professional engineer who is not an employee of the owner or operator of a structure. This subparagraph 

requires that the construction and maintenance of structures ensure dam stability and requires that the owner or operator of a 

structure prepare an emergency action plan for a structure that is 

classified by the implementing agency as ‘‘high hazard’’ pursuant 

to the guidelines published by the Federal Emergency Management 

Agency (FEMA). This subparagraph also requires that surface impoundments that receive CCRs after enactment be inspected at 

least annually by an independent registered professional engineer 

to ensure that they remain able to contain the maximum volume 


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of coal combustion residuals and liquids, and be evaluated periodically for appearances of structural weakness. This subparagraph 

also provides authority to require that action be taken to remedy 

identified deficiencies and authorizes the implementing agency to 

require closure if deficiencies are not corrected. The Committee acknowledges that most States have dam safety personnel with expertise in making determinations regarding the structural deficiency of a surface impoundment. Therefore, this subparagraph requires that the implementing agency consult with State dam safety 

officials when making a determination under this subparagraph. 

Subparagraph (c)(1)(C) of new section 4011 provides that new 

structures that first 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 unless it is demonstrated to the satisfaction of the agency implementing a permit 

program that the hydrogeologic characteristics of the structure preclude the requirement and that the liner system will not be impacted by contact with the water table. 

Subparagraph (D) of paragraph (c)(1) of new section 4011 provides that a permit program address wind dispersal of dust by requiring cover or wetting of coal combustion residuals to a moisture 

content that prevents wind dispersal and facilitates compaction, 

but does not result in free liquids. The owner or operator of a structure may suggest alternative methods to address wind dispersal, 

but the agency implementing a permit program must review and 

approve the alternate method. 

Subparagraph (E) of paragraph (c)(1) of new section 4011 requires the agency responsible for implementing a permit program 

to require the owner or operator of any structure that receives 

CCRs after enactment to apply for and obtain a permit that incorporates the requirements set out in subsection (c). 

Subparagraph (F) of paragraph (c)(1) of new section 4011 requires that, with the exception of information that is protected 

under section 1905 of Title 18, United States Code, documents for 

permit determinations be made available for public review and 

comment pursuant to the State’s public notice and comment process described in the certification under subparagraph (b)(2)(B). 

This subparagraph also requires that final determinations on permit applications and groundwater monitoring data be made publicly available. 

Subparagraph (G) of paragraph (c)(1) of new section 4011 provides the agency implementing a permit program with authority to 

obtain information and to conduct monitoring and testing to make 

sure that structures are in compliance with the requirements of 

subsection (c). This subparagraph also provides the implementing 

agency authority to enter, at reasonable times, any site or premise 

subject to a permit program to review records relevant to the operation and maintenance of structures or to inspect structures. This 

subparagraph provides that an agency implementing a permit program that conducts monitoring or testing, must (if requested) provide to the owner or operator a written description of the monitoring or testing completed and at the time of sampling, provide a 

portion of each sample equal in volume or weight to that retained 

by or for the agency, and the results of sample analysis. 


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Paragraph (c)(2) of new section 4011 specifies a subset of the criteria set out in Title 40, Part 258 of the Code of Federal Regulations that are required to be part of a coal combustion residuals 

permit program. Part 258 was promulgated by EPA pursuant to direction from Congress (in sections 4010(c) and 4004(a) of RCRA) 

that the criteria be necessary ‘‘to protect human health and the environment.’’ Further, EPA stated in the Proposed Rule as follows: 

[I]n developing the proposed RCRA subtitle D option for 

CCRs, EPA considered a number of existing requirements 

as relevant models for minimum national standards for 

the safe disposal of CCRs. The primary source was the existing requirements under 40 CFR part 258, applicable to 

municipal solid waste landfills, which provide a comprehensive framework for all aspects of disposal in landbased units, such as CCR landfills. Based on the Agency’s 

substantial experience with these requirements, EPA believes 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 believes that by incorporating the revised criteria 

in Part 258—which were promulgated by EPA as those necessary 

to protect human health and the environment—the minimum requirements set out in H.R. 2218 fully protect human health and 

the environment. 

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

design requirements. 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, except that the leachate collection system 

requirements in section 258.40(a)(2) do not apply to structures that 

are surface impoundments. 

Subparagraph (B) of paragraph (c)(2) of new section 4011 requires that all structures that receive coal combustion residuals on 

or after the date of enactment have groundwater monitoring as described in 40 CFR 258 subpart E. This subparagraph also incorporates additional groundwater monitoring constituents specific to 

coal combustion residuals. Specifically included in the minimum requirements for detection monitoring are: boron, chloride, conductivity, fluoride, mercury, pH, sulfate, and total dissolved solids. For 

assessment monitoring establishing a groundwater protection 

standard, and assessment of corrective measures, the minimum requirements include: aluminum, boron, chloride, fluoride, iron, manganese, molybdenum, pH, sulfate, and total dissolved solids. 

Subparagraph (C) of paragraph (c)(2) of new section 4011 specifies the applicable requirements in 40 CFR 258.60 for closure. The 

Committee recognizes that certain requirements in 40 CFR 258.60 

are not applicable and therefore, are excluded. 

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

258.61 for post-closure care. 


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

Part 258.24. 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, but this Title requires that structures that receive coal combustion residuals after enactment also comply with 

the revised criteria for air quality described in section 40 CFR 

258.24. 

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

Subparagraph (H) of paragraph (c)(2) of new section 4011 requires a permit program to include the surface water requirements 

in section 40 CFR 258.27. 

Subparagraph (I) of paragraph (c)(2) of new section 4011 requires 

a permit program to include the recordkeeping requirements in section 40 CFR 258.29. 

Subparagraph (J) of paragraph (c)(2) of new section 4011 requires a permit program to apply the revised criteria for run-on 

and run-off control systems described in 40 CFR 258.26 to landfills 

and other land-based units, other than surface impoundments, that 

receive coal combustion residuals after the date of enactment. 

Subparagraph (K) of paragraph (c)(2) of new section 4011 requires a permit program to apply only the revised criteria for runoff control systems described in 40 CFR 258.26(a)(2) to surface impoundments that receive coal combustion residuals after the date 

of enactment. 

Paragraph (c)(3) of new section 4011 sets a schedule for permit 

program implementation for structures that receive CCR on or 

after the date of enactment. Not later than when a State submits 

its permit program certification to the Administrator, 30 months 

after a State notifies the Administrator of EPA that it does not intend to develop a CCR permit program, or 36 months after the date 

of enactment when the Administrator is implementing a permit 

program under subsection (e)(3), the implementing agency must notify owners of structures receiving CCRs, as of the date of enactment, of the obligation to obtain a permit and of the requirements 

(in subparagraph (c)(3)(B)) that the owners or operators will be required to comply with during the period of interim operation. The 

Committee intends that not later than 3 years after the date of enactment, all owners or operators of structures will be notified of the 

applicable coal combustion residual permit program requirements. 

Subparagraph (c)(3)(B) of new section 4011 establishes a schedule by which owners or operators of structures that are receiving 


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CCRs as of the date of enactment must comply with certain requirements from subsections (c)(1) and (c)(2); in particular, the 

(c)(1) requirements regarding creation of an emergency action plan, 

annual inspection regarding the design, construction, and maintenance of surface impoundments, and the (c)(2) requirements for 

groundwater monitoring and corrective action, air quality, surface 

water, run-on and run-off for land-based units, run-off for surface 

impoundments, and specific groundwater record keeping requirements. Compliance with these requirements must begin no later 

than 12 months after a State submits its certification, 42 months 

after the Administrator receives notice that a State will not operate 

its own permit program, or 48 months after enactment for a program to be implemented by the Administrator under (e)(3). The 

Committee intends that no later than 4 years after the date of enactment, owners or operators of structures will comply with the 

specified requirements. 

Subparagraph (c)(3)(C) of new section 4011 provides that the implementing agency must issue a permit or deny an application 

within 48 months after the State submits its certification, 78 

months after the Administrator receives notice from a State that 

it does not intend to operate its own permit program, or 84 months 

after enactment for programs implemented by the Administrator. 

The implementing agency must collaborate with the structure’s 

owner or operator to identify a deadline by which a permit application must be submitted. The Committee intends that permits will 

be issued within seven years from the date of enactment. 

Subparagraph (c)(3)(D) of new section 4011 provides that structures receiving CCRs on or after the date of enactment may continue to operate under existing authority between the date of enactment and the deadlines by which they must comply with the requirements in Subparagraph (c)(3)(B). After the applicable deadlines and before receiving a permit that meets the minimum requirements, a structure in compliance with the requirements in 

subparagraph (c)(3)(B) may continue to operate unless it is required by the implementing agency to close under Paragraph (5). 

The purpose of this provision is to ensure that owners or operators 

may continue to operate from the date of enactment through the 

interim period of operation and to ensure that owners and operators that are in compliance with the requirements in subparagraph 

(c)(3)(B) may continue to operate even in the absence of a permit 

until such time as the implementing agency issues a final permit 

that incorporates the minimum requirements for a coal combustion 

residuals permit program or issues a permit denial. 

Paragraph (c)(4) of new section 4011 applies, in addition to the 

groundwater monitoring and corrective action requirements in 

(c)(2)(B), to surface impoundments that do not have a liner system 

described in 40 CFR 258.40(b) and that do not meet the design criteria described in 40 CFR 258.40(a)(1). 

Subparagraph (c)(4)(A) of new section 4011 provides that surface 

impoundments that, within 10 years of the date of enactment, are 

required to undergo an assessment of corrective measures for any 

constituent identified in paragraph (2)(B) for which assessment 

groundwater monitoring is required, must meet the groundwater 

protection standard established by the agency implementing the 


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permit program at the relevant point of compliance as soon as 

practicable, but not later than 10 years from the date of enactment. 

Subparagraph (c)(4)(B) of new section 4011 provides that surface 

impoundments that are subject to a State corrective action requirement as of the date of enactment, must meet the groundwater protection standard established by the agency implementing the permit program at the relevant point of compliance as soon as practicable, but not later than 8 years from the date of enactment. 

Subparagraph (c)(4)(C) of new section 4011 provides that the 

deadlines for meeting the groundwater protection standard in subparagraphs (B) and (C) may be extended by the agency responsible 

for implementing the coal combustion residuals permit program, 

after opportunity for public notice and comment, based on the following factors: (1) consideration of the effectiveness of any interim 

measures implemented by the owner or operator of the facility 

under section 258.58(a)(3) of title 40, Code of Federal Regulations; 

(2) the level of progress demonstrated in meeting the groundwater 

protection standard; (3) the potential for other adverse human 

health or environmental exposures attributable to the contamination from the surface impoundment undergoing corrective action; 

and (4) the lack of available alternative management capacity for 

the coal combustion residuals and related materials managed in 

the impoundment at the facility at which the impoundment is located if the owner or operator has used best efforts, as necessary, 

to design, obtain any necessary permits, finance, construct, and 

render operational the alternative management capacity during the 

time period for meeting the groundwater protection standard. The 

deadlines may not be extended if there has been contamination of 

public or private drinking water systems attributable to a surface 

impoundment undergoing corrective action, unless the contamination has been addressed by providing a permanent replacement 

water system. 

Subparagraph (c)(4)(D) of new section 4011 provides that if the 

impoundments identified in (c)(4)(A) and (c)(4)(B) do not meet the 

groundwater protection standard, they must cease receiving coal 

combustion residuals and initiate closure pursuant to subparagraph (c)(5). This subparagraph also provides that, within 90 days 

of the date an assessment of corrective measures is initiated, the 

owner or operator of a surface impoundment must implement interim measures, as necessary, under the factors in 40 CFR 

58.58(a)(3). For surface impoundments subject to a State corrective 

action requirement on the date of enactment, the owner or operator 

must implement interim measures, as necessary, if interim measures have not been previously implemented. 

Subparagraph (c)(4)(E) of new section 4011 provides that surface 

impoundments that more than 10 years after date of enactment are 

required to undergo an assessment of corrective measures, shall 

cease receiving coal combustion residuals and initiate closure under 

subparagraph (c)(5) after alternative management capacity for the 

coal combustion residuals and related materials managed in the 

impoundment at the facility is available. The alternative management capacity is required to be developed as soon as practicable 

with the owner or operator using best efforts, to design, obtain necessary permits, finance, construct, and render operational the alternative management capacity. The owner or operator must, in colVerDate Mar 15 2010 23:03 Jul 12, 2013 Jkt 029006 PO 00000 Frm 00032 Fmt 6659 Sfmt 6602 E:\HR\OC\HR148.XXX HR148

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laboration with the agency responsible for implementing the coal 

combustion residuals permit program, prepare a written plan, subject to public notice and comment, which describes the steps necessary to develop the alternative management capacity and includes a schedule for completion. 

Paragraph (c)(5) of new section 4011 provides that if an implementing agency, or the structure’s owner or operator, determines 

that a structure should close, the time period and method for closure must be set forth in a closure plan. The deadline set out in 

the plan for completing closure must be as soon as practicable taking into account site-specific characteristics. The closure plan for 

surface impoundments must include removal of liquid and stabilization of remaining waste, as necessary to support the final 

cover. The Committee intends that closure of structures involve a 

range of site-specific factors and that the closure timeframes applicable to municipal solid waste landfills under 40 CFR, Part 258 not 

apply to CCRs. For that reason these time frames were excluded 

from the revised criteria in subsection (c)(2). For example, municipal solid waste landfill closure requirements in 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 paragraph, would recognize this ancillary 

function and provide a reasonable time for alternative wastewater 

treatment facilities to be permitted and constructed. 

Subsection (d) of new section 4011 provides for Federal review of 

State permit programs and 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; (D) implement a permit program that meets 

the specifications in (c); (E) implement a permit program that is 

consistent with the certification under (b)(2) and for which the 

State continues to have in effect the statutes or regulations necessary to implement such permit program; or (F) if a State fails, 

upon written request from the Administrator, to make available information regarding whether the State has complied with the requirements in subparagraphs (A) through (E). The information 


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must be made available within 90 days of the Administrator’s written request. The information request may be made only if the Administrator does not possess the information requested at the time 

of the request. 

Paragraph (d)(3) 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 requirements in subparagraphs (A) through (F). This paragraph 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 except for a deficiency under subparagraph (F) for which the deadline may not be 

later than 90 days. 

Paragraph (d)(4) of new section 4011 sets out deficiency criteria 

with which the Administrator can determine if a State permit does 

not meet the requirements of paragraphs (A) through (E) of paragraph (d)(1), or to implement a program for a State under subsection (e). These criteria include whether a State’s statutes or regulations are not sufficient to meet the minimum requirements in 

subsection (c); whether a State has failed to promulgate or enact 

necessary new statutes or regulations; whether actions by a State 

legislature or court limit such State statutes or regulations; whether a State permit program fails to issue permits required in (c)(1) 

or repeatedly issues permits that do not meet the requirements in 

subsection (c); whether a State fails to comply with public participation requirements of this section; whether a State fails to implement corrective action requirements; or whether enforcement of a 

State permit does not comply with new section 4011 because of failure to act on violations or failure to inspect. The Committee believes that the specific objective criteria listed in subparagraph 

(d)(4) provide the necessary parameters for EPA to determine 

whether a State permit program is deficient. 

Subsection (e) of new section 4011 provides that the Administrator must implement and administer a permit program for a 

State only if: (1) the Governor of a State notifies the Administrator 

that the 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 public notice and comment, 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. A State 

may obtain review of this determination by the Administrator as 

if the determination was a final regulation under section 7006 of 

the Solid Waste Disposal Act. The Committee intends that the Administrator’s authority under subsection (d) to assess—at any 

time—whether a State permit program is deficient, combined with 

the authority of the Administrator under subsection (e) to assume 

implementation of a deficient permit program, provides a legal 

backstop for State permit programs. 

Paragraph (e)(3) provides that the Administrator must implement a permit program for structures that receive CCRs after enVerDate Mar 15 2010 23:03 Jul 12, 2013 Jkt 029006 PO 00000 Frm 00034 Fmt 6659 Sfmt 6602 E:\HR\OC\HR148.XXX HR148

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actment and that are within exterior boundaries of a State that a 

State does not have authority to regulate. The Committee intends 

that this provision only allow the Administrator to regulate structures on property governed by an Indian tribe. 

Subsection (e) further requires 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) and specifically does not authorize a program implemented by the Administrator to include requirements not specifically identified in subsection (c). 

Paragraph (e)(5) provides that when implementing a permit program under subsection (e), the Administrator may inspect, gather 

information, and enforce requirements of this Act using the inspection and enforcement authorities referred to in 4005(c)(2)(A) of the 

Solid Waste Disposal Act, which references 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 programs have not 

been assumed by the Administrator pursuant to the provisions of 

subsection (e). 

Paragraph (e)(6) provides that if implementing a CCR permit 

program for a State under subsection (e), the Administrator must 

provide a 30 day period for public participation for granting an extension under subparagraph (c)(4)(C)(i) and when developing a plan 

under (c)(4)(E)(ii)(IV). 

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 State notified the Administrator that 

it had chosen not to do so, a State may resume control of its permit 

program by notifying the Administrator that it will adopt and implement a permit program. Within six months of notification, the 

State must certify to EPA, pursuant to the requirements provided 

in subsection (b)(2), that its program meets the minimum specifications for a permit program. Before a State may resume authority 

for implementation, it must receive from the Administrator 1) a determination, after notice and a 30 day period for public comment, 

that the State’s permit program meets the minimum program specifications described in subsection (c) and 2) 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 (f)(1)(B) provides that, if the Administrator is implementing a permit program because a State failed to remedy an 

identified deficiency, a State may take back control of its permit 

program by (1) correcting only the deficiencies identified by the Administrator in the initial notice under subsection (d) and (2) receiving a determination from the Administrator, after notice and a 30 

day period for public comment, that the State has 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. 


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Subparagraph (f)(2)(A) 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 State has met applicable 

statutory criteria. 

Subparagraph (f)(2)(B) 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 was 

a final regulation subject to judicial review under section 7006 of 

the Solid Waste Disposal Act. 

Paragraph (f)(3) 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 would 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) changes 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 (f)(4) requires that there be only one permit program 

pursuant to new section 4011 in each State at any given time and 

requires that if a State regains control of a permit program from 

the Administrator, the Administrator cease to implement its permit 

program. 

Subsection (g) 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. 

Paragraph (h)(1) 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 (h)(2) requires that, with respect to the regulation of 

coal combustion residuals, the Administrator defer regulation to 

the States unless the Administrator makes a deficiency finding 

under subsection (d), is regulating coal combustion residuals in a 

State pursuant to a program authorized under subsection (e), or as 

part of the Administrator’s authorities regarding Federally funded 


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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 unintended consequences where 

State laws preclude a State from regulating more stringently than 

the Administrator. Paragraph (h)(2) also precludes the Administrator from promulgating additional regulations specifically for the 

regulation of coal combustion residuals. 

Subparagraph (h)(2)(B) is a savings clause to clarify that nothing 

in the Coal Residuals Reuse and Management Act of 2013 affects 

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 (h)(2)(C) allows the Administrator to provide enforcement assistance when requested by a State, but only the specific assistance requested by the State. 

Subparagraph (h)(2)(D) provides that, unless a State requests enforcement assistance, if a State is implementing a permit program, 

the Administrator would have no concurrent enforcement authority 

including during the period of interim operation described in subsection (c)(3)(D). 

Subparagraph (h)(2)(E) precludes the Administrator from finalizing the proposed rule published at pages 35138 through 35263 of 

volume 75 of the Federal Register. 

Subparagraph (h)(2)(F) is a savings clause to clarify that nothing 

in the Coal Residuals Reuse and Management Act of 2013 affects 

the authority of the Administrator under the Comprehensive Environmental Response, Compensation, Liability Act of 1980 (42 

U.S.C. 9601 et seq.). 

Paragraph (h)(3) is a savings clause clarifying that this legislation does not affect the authority of a person to commence an action under section 7002 of the Solid Waste Disposal Act. 

Subsection (i) provides that a permit program implemented by 

the Administrator under subsection (e) 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.) 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 this Title does not affect such State authorities. 

Subsection (j) includes the following definitions: 

• ‘‘Coal combustion residuals’’ includes 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. 

The Committee intends that permit programs created pursuant to 

new section 4011 regulate ash waste generated primarily from the 


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combustion of coal. ‘‘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. • ‘‘Coal combustion residuals permit program’’ means all of the 

authorities, activities, and procedures that comprise the system of 

prior approval and conditions implemented by or for a State to regulate the management and disposal of coal combustion residuals or, 

as conditioned in this Title, by the Administrator for a State. • ‘‘Code of Federal Regulations’’ means the Code of Federal Regulations (as in effect on the date of enactment of this section) or 

any successor regulations. • ‘‘Implementing agency’’ means the lead State implementing 

agency in clause (b)(2)(B)(i) or the Administrator acting pursuant 

to subsection (e). • ‘‘Permit; prior approval and conditions’’ means any authorization, license, or equivalent control document that incorporates the 

requirements and revised criteria in subsection (c). • ‘‘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). 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 the Solid Waste Disposal Act. 

These applicable provisions require that the Agency’s promulgated 

regulations provide: 

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

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

or the environment’’ [4004(a)]; and 

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

the environment. . . .’’ [4010(c)]. 

Accordingly, the Committee expects that the Federal standard of protection, which is comprised of the minimum requirements in this legislation, will protect human health and the 

environment without promulgation of new Federal regulations 

for coal combustion residuals. As the Environmental Protection 

Agency acknowledged in its Proposed Rule, 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.’’ 

Finally, while the legislation 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. 


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• ‘‘Structure’’ includes landfills, surface impoundments, or other 

land-based units which may receive coal combustion residuals. 

While the Committee is aware that 40 CFR Part 258 was promulgated to regulate municipal solid waste landfills, the Committee 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 leaves no gaps between the requirements of 40 CFR Part 258 and what is required 

to regulate land-based disposal units other than solid waste landfills. 

‘‘Structure’’ does not include any land-based unit that receives 

only de minimis quantities of coal combustion residuals if the presence of coal combustion residuals is incidental to the material managed in the unit. Nor does the Committee intend ‘‘structure’’ to include land-based units at coal-fired electric power plants—such as 

cooling water, polishing, or storm water ponds—which receive 

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

disposal structures for, coal combustion residuals. The Committee 

also does not intend that the term ‘‘other land-based unit’’ include 

temporary piles or other inventories of coal combustion residuals 

stored by manufacturers for purposes of recycling or beneficial reuse. 

Section 3. 2000 Regulatory determination 

This section provides that nothing in this Title 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). 

Section 4. Technical assistance 

This section provides that nothing in this Title be construed to 

affect the authority of a State to request, or the Administrator to 

provide, technical assistance under the Solid Waste Disposal Act 

(42 U.S.C. 6901 et seq.). 

Section 5. Federal Power Act 

This section provides that nothing in this Title be construed to 

affect the obligations of the owner or operator of a structure under 

section 215(b)(1) of the Federal Power Act (16 U.S.C. 824o(b)(1)).’’ 

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): 


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SOLID WASTE DISPOSAL ACT 

TITLE II—SOLID WASTE DISPOSAL 

Subtitle A—General Provisions 

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’’: 

* * * * * * * 

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, implement, and enforce a coal combustion residuals permit program if such State provides the notification required under subsection (b)(1), and the certification required under subsection (b)(2). 

(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)(3)(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 subsection (f)(1)(A)), 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 implementing agency shall submit to the Administrator a certification that such coal combustion residuals permit program 

meets the requirements described in subsection (c). 

(B) CONTENTS.—A certification submitted under this 

paragraph shall include— 

(i) a letter identifying the lead State implementing 

agency, 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) an explanation of how the State coal combustion 

residuals permit program meets the requirements of 

this section, including a description of the State’s— 


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(I) process to inspect or otherwise determine compliance with such permit program; 

(II) process to enforce the requirements of such 

permit program; 

(III) public participation process for the promulgation, amendment, or repeal of regulations for, 

and the issuance of permits under, such permit 

program; 

(IV) statutes, regulations, or policies pertaining 

to public access to information, such as groundwater monitoring data; and 

(V) statutes, regulations, or policies pertaining to 

structural integrity or dam safety that may be applied to structures through such permit program; 

(iv) a certification that the State has in effect, at the 

time of certification, statutes or regulations necessary 

to implement a coal combustion residuals permit program that meets the requirements described in subsection (c); and 

(v) copies of State statutes and regulations described 

in clause (iv). 

(C) UPDATES.—A State may update the certification as 

needed to reflect changes to the coal combustion residuals 

permit program. 

(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 implementing agency shall maintain an approved permit program or other system of prior approval and conditions 

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

3006. 

(c) REQUIREMENTS FOR A COAL COMBUSTION RESIDUALS PERMIT

PROGRAM.—A coal combustion residuals permit program shall consist of the following: 

(1) GENERAL REQUIREMENTS.— 

(A) IN GENERAL.—The implementing agency shall— 

(i) apply the subset of the revised criteria described 

in paragraph (2) to owners or operators of structures, 

including surface impoundments, that receive coal 

combustion residuals on or after the date of enactment 

of this section; 

(ii) with respect to structures that are receiving coal 

combustion residuals as of the date of enactment of 

this section, take the actions required under paragraph 

(3); 

(iii) impose requirements for surface impoundments 

that do not meet certain criteria pursuant to paragraph 

(4); and 

(iv) require that closure of structures occur in accordance with paragraph (5). 

(B) STRUCTURAL INTEGRITY.— 

(i) ENGINEERING CERTIFICATION.—The implementing 

agency shall require that an independent registered 

professional engineer certify that— 


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(I) the design of each structure that receives coal 

combustion residuals on or after the date of enactment of this section is in accordance with recognized and generally accepted good engineering 

practices for containment of the maximum volume 

of coal combustion residuals and liquids which 

can be impounded therein; and 

(II) the construction and maintenance of the 

structure will ensure structural stability. 

(ii) EMERGENCY ACTION PLAN.—The implementing 

agency shall require that the owner or operator of any 

structure that is a surface impoundment that receives 

coal combustion residuals on or after the date of enactment of this section and that is classified by the State 

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) prepare and 

maintain an emergency action plan that identifies responsible persons and actions to be taken in the event 

of a dam safety emergency. 

(iii) INSPECTION.— (I) IN GENERAL.—The implementing agency shall 

require that structures that are surface impoundments that receive coal combustion residuals on or 

after the date of enactment of this section be inspected not less than annually by an independent 

registered professional engineer to assure that the 

design, operation, and maintenance of the surface 

impoundment is in accordance with recognized 

and generally accepted good engineering practices 

for containment of the maximum volume of coal 

combustion residuals and liquids which can be impounded therein, so as to ensure dam stability. 

(II) POTENTIALLY HAZARDOUS CONDITIONS.—The 

implementing agency shall require that if an inspection under subclause (I), or a periodic evaluation under clause (iv), reveals a potentially hazardous condition, the owner or operator of the 

structure shall immediately take action to mitigate 

the potentially hazardous condition and notify appropriate State and local first responders. 

(iv) PERIODIC EVALUATION.—The implementing agency shall require that structures that are surface impoundments that receive coal combustion residuals on 

or after the date of enactment of this section be periodically evaluated for appearances of structural weakness. 

(v) DEFICIENCY.— (I) IN GENERAL.—If the head of the implementing agency determines that a structure is deficient with respect to the requirements in clause (i), 

(iii), or (iv), the head of the agency has the authority to require action to correct the deficiency according to a schedule determined by the agency. 


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(II) UNCORRECTED DEFICIENCIES.—If a deficiency is not corrected according to the schedule, 

the head of the implementing agency has the authority to require that the structure close in accordance with paragraph (5). 

(III) DAM SAFETY CONSULTATION.—In the case of 

a structure that is a surface impoundment, the 

head of the implementing agency shall, in making 

a determination under subclause (I), consult with 

appropriate State dam safety officials. 

(C) LOCATION.—The implementing agency shall require 

that structures that first receive coal combustion residuals 

on or after the date of enactment of this section shall be 

constructed with a base located a minimum of 2 feet above 

the upper limit of the water table, unless it is demonstrated 

to the satisfaction of the implementing agency that— 

(i) the hydrogeologic characteristics of a structure 

and surrounding land would preclude such a requirement; and 

(ii) the function and integrity of the liner system will 

not be adversely impacted by contact with the water 

table. 

(D) WIND DISPERSAL.— 

(i) IN GENERAL.—The implementing agency shall require that owners or operators of structures that receive 

coal combustion residuals on or after the date of enactment of this section address wind dispersal of dust by 

requiring cover, or by wetting coal combustion residuals with water to a moisture content that prevents wind 

dispersal, facilitates compaction, and does not result in 

free liquids. 

(ii) ALTERNATIVE METHODS.—Subject to the review 

and approval by the implementing agency, owners or 

operators of structures that receive coal combustion residuals on or after the date of enactment of this section 

may propose alternative methods to address wind dispersal of dust that will provide comparable or more effective control of dust. 

(E) PERMITS.—The implementing agency shall require 

that owners or operators of structures that receive coal combustion residuals on or after the date of enactment of this 

section apply for and obtain permits incorporating the requirements of the coal combustion residuals permit program. 

(F) PUBLIC AVAILABILITY OF INFORMATION.—Except for 

information with respect to which disclosure is prohibited 

under section 1905 of title 18, United States Code, the implementing agency shall ensure that— 

(i) documents for permit determinations are made 

available for public review and comment under the 

public participation process described in subsection 

(b)(2)(B)(iii)(III) or in subsection (e)(6), as applicable; 

(ii) final determinations on permit applications are 

made known to the public; and 


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(iii) groundwater monitoring data collected under 

paragraph (2) is publicly available. 

(G) AGENCY AUTHORITY.— 

(i) IN GENERAL.—The implementing agency has the 

authority to— 

(I) obtain information necessary to determine 

whether the owner or operator of a structure is in 

compliance with the requirements of this subsection; 

(II) conduct or require monitoring and testing to 

ensure that structures are in compliance with the 

requirements of this subsection; and 

(III) enter, at reasonable times, any site or 

premise subject to the coal combustion residuals 

permit program for the purpose of inspecting structures and reviewing records relevant to the design, 

operation, and maintenance of structures. 

(ii) MONITORING AND TESTING.—If monitoring or 

testing is conducted under clause (i)(II) by or for the 

implementing agency, the implementing agency shall, 

if requested, provide to the owner or operator— 

(I) a written description of the monitoring or 

testing completed; 

(II) at the time of sampling, a portion of each 

sample equal in volume or weight to the portion retained by or for the implementing agency; and 

(III) a copy of the results of any analysis of samples collected by or for the implementing agency. 

(2) REVISED CRITERIA.—The subset of the revised criteria referred to in paragraph (1)(A)(i) are as follows: 

(A) DESIGN REQUIREMENTS.—For new structures, and 

lateral expansions of existing structures, that first receive 

coal combustion residuals on or 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, except that the leachate collection system 

requirements described in section 258.40(a)(2) of title 40, 

Code of Federal Regulations, do not apply to structures 

that are surface impoundments. 

(B) GROUNDWATER MONITORING AND CORRECTIVE ACTION.—For all structures that receive coal combustion residuals on or 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 subparagraph, the 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, establishing a groundwater protection standard, and assessment of corrective measures, the constituents aluVerDate Mar 15 2010 23:03 Jul 12, 2013 Jkt 029006 PO 00000 Frm 00044 Fmt 6659 Sfmt 6603 E:\HR\OC\HR148.XXX HR148

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minum, boron, chloride, fluoride, iron, manganese, molybdenum, pH, sulfate, and total dissolved solids. 

(C) CLOSURE.—For all structures that receive coal combustion residuals on or after the date of enactment of this 

section, in a manner consistent with paragraph (5), the revised criteria for closure described in subsections (a) 

through (c) and (h) through (j) of section 258.60 of title 40, 

Code of Federal Regulations. 

(D) POST-CLOSURE.—For all structures that receive coal 

combustion residuals on or after the date of enactment of 

this section, the revised criteria for post-closure care described in section 258.61 of title 40, Code of Federal Regulations, except for the requirement described in subsection 

(a)(4) of that section. 

(E) LOCATION RESTRICTIONS.—The revised criteria for location restrictions described in— 

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

section, sections 258.11 and 258.15 of title 40, Code of 

Federal Regulations. 

(F) AIR QUALITY.—For all structures that receive coal 

combustion residuals on or 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. 

(G) FINANCIAL ASSURANCE.—For all structures that receive coal combustion residuals on or 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. 

(H) SURFACE WATER.—For all structures that receive coal 

combustion residuals on or 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. 

(I) RECORDKEEPING.—For all structures that receive coal 

combustion residuals on or 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. 

(J) RUN-ON AND RUN-OFF CONTROL SYSTEMS FOR LANDBASED UNITS.—For all landfills and other land-based units, 

other than surface impoundments, that receive coal combustion residuals on or 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. 

(K) RUN-OFF CONTROL SYSTEMS FOR SURFACE IMPOUND- MENTS.—For all surface impoundments that receive coal 

combustion residuals on or 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. 


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(3) PERMIT PROGRAM IMPLEMENTATION FOR EXISTING STRUCTURES.— 

(A) NOTIFICATION.—Not later than the date on which a 

State submits a certification under subsection (b)(2), not 

later than 30 months after the Administrator receives notice 

under subsection (e)(1)(A), or not later than 36 months after 

the date of enactment of this section with respect to a coal 

combustion residuals permit program that is being implemented by the Administrator under subsection (e)(3), as applicable, the implementing agency shall notify owners or 

operators of structures that are receiving coal combustion 

residuals as of the date of enactment of this section within 

the State of— 

(i) the obligation to apply for and obtain a permit 

under subparagraph (C); and 

(ii) the requirements referred to in subparagraph (B). 

(B) COMPLIANCE WITH CERTAIN REQUIREMENTS.—Not 

later than 12 months after the date on which a State submits a certification under subsection (b)(2), not later than 

42 months after the Administrator receives notice under 

subsection (e)(1)(A), or not later than 48 months after the 

date of enactment of this section with respect to a coal combustion residuals permit program that is being implemented by the Administrator under subsection (e)(3), as applicable, the implementing agency shall require owners or 

operators of structures that are receiving coal combustion 

residuals as of the date of enactment of this section to comply with— 

(i) the requirements under paragraphs (1)(B)(ii) and 

(iii), (1)(D), (2)(B), (2)(F), (2)(H), (2)(J), and (2)(K); and 

(ii) the groundwater recordkeeping requirement described in section 258.29(a)(5) of title 40, Code of Federal Regulations. 

(C) PERMITS.— 

(i) PERMIT DEADLINE.—Not later than 48 months 

after the date on which a State submits a certification 

under subsection (b)(2), not later than 78 months after 

the Administrator receives notice under subsection 

(e)(1)(A), or not later than 84 months after the date of 

enactment of this section with respect to a coal combustion residuals permit program that is being implemented by the Administrator under subsection (e)(3), as 

applicable, the implementing agency shall issue, with 

respect to a structure that is receiving coal combustion 

residuals as of the date of enactment of this section, a 

final permit incorporating the requirements of the coal 

combustion residuals permit program, or a final denial 

for an application submitted requesting such a permit. 

(ii) APPLICATION DEADLINE.—The implementing 

agency shall identify, in collaboration with the owner 

or operator of a structure described in clause (i), a reasonable deadline by which the owner or operator shall 

submit a permit application under such clause. 

(D) INTERIM OPERATION.— 


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(i) PRIOR TO DEADLINES.—With respect to any period 

of time on or after the date of enactment of this section 

but prior to the applicable deadline in subparagraph 

(B), the owner or operator of a structure that is receiving coal combustion residuals as of the date of enactment of this section may continue to operate such structure until such applicable deadline under the applicable authority in effect. 

(ii) PRIOR TO PERMIT.—Unless the implementing 

agency determines that the structure should close pursuant to paragraph (5), if the owner or operator of a 

structure that is receiving coal combustion residuals as 

of the date of enactment of this section meets the requirements referred to in subparagraph (B) by the applicable deadline in such subparagraph, the owner or 

operator may operate the structure until such time as 

the implementing agency issues, under subparagraph 

(C), a final permit incorporating the requirements of 

the coal combustion residuals permit program, or a 

final denial for an application submitted requesting 

such a permit. 

(4) REQUIREMENTS FOR SURFACE IMPOUNDMENTS THAT DO

NOT MEET CERTAIN CRITERIA.— (A) SURFACE IMPOUNDMENTS THAT REQUIRE ASSESSMENT

OF CORRECTIVE MEASURES WITHIN 10 YEARS OF THE DATE

OF ENACTMENT.— (i) IN GENERAL.—In addition to the groundwater 

monitoring and corrective action requirements described in paragraph (2)(B), the implementing agency 

shall require a surface impoundment that receives coal 

combustion residuals on or after the date of enactment 

of this section to comply with the requirements in 

clause (ii) of this subparagraph and clauses (i) and (ii) 

of subparagraph (D) if the surface impoundment— 

(I) does not— 

(aa) have a liner system described in section 

258.40(b) of title 40, Code of Federal Regulations; and 

(bb) meet the design criteria described in 

section 258.40(a)(1) of title 40, Code of Federal 

Regulations; and 

(II) within 10 years after the date of enactment 

of this section, is required under section 258.56(a) 

of title 40, Code of Federal Regulations, to undergo 

an assessment of corrective measures for any constituent covered under subpart E of part 258 of 

title 40, Code of Federal Regulations, or otherwise 

identified in paragraph (2)(B)(ii) of this subsection, 

for which assessment groundwater monitoring is 

required. 

(ii) DEADLINE TO MEET GROUNDWATER PROTECTION

STANDARD.—Except as provided in subparagraph (C), 

the implementing agency shall require that the groundwater protection standard, for surface impoundments 

identified in clause (i) of this subparagraph, estabVerDate Mar 15 2010 23:03 Jul 12, 2013 Jkt 029006 PO 00000 Frm 00047 Fmt 6659 Sfmt 6603 E:\HR\OC\HR148.XXX HR148

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lished by the implementing agency under section 

258.55(h) or 258.55(i) of title 40, Code of Federal Regulations, for any constituent for which corrective measures are required shall be met— 

(I) as soon as practicable at the relevant point of 

compliance, as described in section 258.40(d) of 

title 40, Code of Federal Regulations; and 

(II) not later than 10 years after the date of enactment of this section. 

(B) SURFACE IMPOUNDMENTS SUBJECT TO A STATE COR- RECTIVE ACTION REQUIREMENT AS OF THE DATE OF ENACT- MENT.— 

(i) IN GENERAL.—In addition to the groundwater 

monitoring and corrective action requirements described in paragraph (2)(B), the implementing agency 

shall require a surface impoundment that receives coal 

combustion residuals on or after the date of enactment 

of this section to comply with the requirements in 

clause (ii) of this subparagraph and clauses (i) and (ii) 

of subparagraph (D) if the surface impoundment— 

(I) does not— 

(aa) have a liner system described in section 

258.40(b) of title 40, Code of Federal Regulations; and 

(bb) meet the design criteria described in 

section 258.40(a)(1) of title 40, Code of Federal 

Regulations; and 

(II) as of the date of enactment of this section, is 

subject to a State corrective action requirement. 

(ii) DEADLINE TO MEET GROUNDWATER PROTECTION

STANDARD.—Except as provided in subparagraph (C), 

the implementing agency shall require that the groundwater protection standard, for surface impoundments 

identified in clause (i) of this subparagraph, established by the implementing agency under section 

258.55(h) or 258.55(i) of title 40, Code of Federal Regulations, for any constituent for which corrective measures are required shall be met— 

(I) as soon as practicable at the relevant point of 

compliance, as described in section 258.40(d) of 

title 40, Code of Federal Regulations; and 

(II) not later than 8 years after the date of enactment of this section. 

(C) EXTENSION OF DEADLINE.— 

(i) IN GENERAL.—Except as provided in clause (ii) of 

this subparagraph, the deadline for meeting a groundwater protection standard under subparagraph (A)(ii) 

or (B)(ii) may be extended by the implementing agency, 

after opportunity for public notice and comment under 

the public participation process described in subsection 

(b)(2)(B)(iii)(III), or in subsection (e)(6) based on— 

(I) the effectiveness of any interim measures implemented by the owner or operator of the facility 

under section 258.58(a)(3) of title 40, Code of Federal Regulations; 


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(II) the level of progress demonstrated in meeting 

the groundwater protection standard; 

(III) the potential for other adverse human 

health or environmental exposures attributable to 

the contamination from the surface impoundment 

undergoing corrective action; and 

(IV) the lack of available alternative management capacity for the coal combustion residuals 

and related materials managed in the impoundment at the facility at which the impoundment is 

located if the owner or operator has used best efforts, as necessary, to design, obtain any necessary 

permits, finance, construct, and render operational 

the alternative management capacity during the 

time period for meeting a groundwater protection 

standard in subparagraph (A)(ii) or (B)(ii). 

(ii) EXCEPTION.—The deadline under subparagraph 

(A)(ii) or (B)(ii) shall not be extended if there has been 

contamination of public or private drinking water systems attributable to a surface impoundment undergoing corrective action, unless the contamination has 

been addressed by providing a permanent replacement 

water system. 

(D) ADDITIONAL REQUIREMENTS.— 

(i) CLOSURE.—If the deadline under subparagraph 

(A)(ii), (B)(ii), or (C) is not satisfied, the surface impoundment shall cease receiving coal combustion residuals and initiate closure under paragraph (5). 

(ii) INTERIM MEASURES.— 

(I) IN GENERAL.—Except as provided in subclause (II), not later than 90 days after the date on 

which the assessment of corrective measures is initiated, the owner or operator of a surface impoundment described in subparagraph (A) or (B) shall 

implement interim measures, as necessary, under 

the factors in section 258.58(a)(3) of title 40, Code 

of Federal Regulations. 

(II) IMPOUNDMENTS SUBJECT TO STATE CORRECTIVE ACTION REQUIREMENT AS OF THE DATE OF ENACTMENT.—Subclause (I) shall only apply to surface impoundments subject to a State corrective action requirement as of the date of enactment of this 

section if the owner or operator has not implemented interim measures, as necessary, under the 

factors in section 258.58(a)(3) of title 40, Code of 

Federal Regulations. 

(E) SURFACE IMPOUNDMENTS THAT REQUIRE ASSESSMENT

OF CORRECTIVE MEASURES MORE THAN 10 YEARS AFTER

DATE OF ENACTMENT.— 

(i) IN GENERAL.—In addition to the groundwater 

monitoring and corrective action requirements described in paragraph (2)(B), the implementing agency 

shall require a surface impoundment that receives coal 

combustion residuals on or after the date of enactment 


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of this section to comply with the requirements in 

clause (ii) if the surface impoundment— 

(I) does not— 

(aa) have a liner system described in section 

258.40(b) of title 40, Code of Federal Regulations; and 

(bb) meet the design criteria described in 

section 258.40(a)(1) of title 40, Code of Federal 

Regulations; and 

(II) more than 10 years after the date of enactment of this section, is required under section 

258.56(a) title 40, Code of Federal Regulations, to 

undergo an assessment of corrective measures for 

any constituent covered under subpart E of part 

258 of title 40, Code of Federal Regulations, or otherwise identified in paragraph (2)(B)(ii) of this 

subsection, for which assessment groundwater 

monitoring is required. 

(ii) REQUIREMENTS.— 

(I) CLOSURE.—The surface impoundments identified in clause (i) shall cease receiving coal combustion residuals and initiate closure in accordance with paragraph (5) after alternative management capacity at the facility is available for the 

coal combustion residuals and related materials 

managed in the impoundment. 

(II) BEST EFFORTS.—The alternative management capacity shall be developed as soon as practicable with the owner or operator using best efforts to design, obtain necessary permits for, finance, construct, and render operational the alternative management capacity. 

(III) ALTERNATIVE CAPACITY MANAGEMENT

PLAN.—The owner or operator shall, in collaboration with the implementing agency, prepare a written plan that describes the steps necessary to develop the alternative management capacity and includes a schedule for completion. 

(IV) PUBLIC PARTICIPATION.—The plan described 

in subclause (III) shall be subject to public notice 

and comment under the public participation process described in subsection (b)(2)(B)(iii)(III) or in 

subsection (e)(6), as applicable. 

(5) CLOSURE.— 

(A) IN GENERAL.—If it is determined by the implementing 

agency that a structure should close because the requirements of a coal combustion residuals permit program are 

not being satisfied with respect to such structure, or if it is 

determined by the owner or operator 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 of closure as soon as 

practicable and that takes into account the nature and the 

site-specific characteristics of the structure to be closed. 


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(B) SURFACE IMPOUNDMENT.—In the case of a surface impoundment, the closure plan under subparagraph (A) shall 

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

final cover. 

(d) FEDERAL REVIEW OF STATE PERMIT PROGRAMS.— (1) IN GENERAL.—The Administrator shall provide to a State 

written notice and an opportunity to remedy deficiencies in accordance with paragraph (3) if at any time the State— 

(A) does not satisfy the notification requirement under 

subsection (b)(1); 

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

(C) does not satisfy the maintenance requirement under 

subsection (b)(3); 

(D) is not implementing a coal combustion residuals permit program, with respect to which the State has submitted 

a certification under subsection (b)(2), that meets the requirements described in subsection (c); 

(E) is not implementing a coal combustion residuals permit program, with respect to which the State has submitted 

a certification under subsection (b)(2)— 

(i) that is consistent with such certification; and 

(ii) for which the State continues to have in effect 

statutes or regulations necessary to implement such 

program; or 

(F) does not make available to the Administrator, within 

90 days of a written request, specific information necessary 

for the Administrator to ascertain whether the State has 

satisfied the requirements described in subparagraphs (A) 

through (E). 

(2) REQUEST.—If a request described in paragraph (1)(F) is 

proposed pursuant to a petition to the Administrator, the Administrator shall only make the request if the Administrator 

does not possess the information necessary to ascertain whether 

the State has satisfied the requirements described in subparagraphs (A) through (E) of such paragraph. 

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

provided under paragraph (1) shall— 

(A) include findings of the Administrator detailing any 

applicable deficiencies described in subparagraphs (A) 

through (F) of paragraph (1); and 

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

deadline by which the State shall remedy such applicable 

deficiencies, which shall be— 

(i) in the case of a deficiency described in subparagraphs (A) through (E) of paragraph (1), not earlier 

than 180 days after the date on which the State receives the notice; and 

(ii) in the case of a deficiency described in paragraph 

(1)(F), not later than 90 days after the date on which 

the State receives the notice. 

(4) CRITERIA FOR DETERMINING DEFICIENCY OF STATE PERMIT

PROGRAM.—In making a determination whether a State has 

failed to satisfy the requirements described in subparagraphs 


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(A) through (E) of paragraph (1), or a determination under subsection (e)(1)(B), the Administrator shall consider, as appropriate— 

(A) whether the State’s statutes or regulations to implement a coal combustion residuals permit program are not 

sufficient to meet the requirements described in subsection 

(c) because of— 

(i) failure of the State to promulgate or enact new 

statutes or regulations when necessary; or 

(ii) action by a State legislature or court striking 

down or limiting such State statutes or regulations; 

(B) whether the operation of the State coal combustion residuals permit program fails to comply with the requirements of subsection (c) because of— 

(i) failure of the State to issue permits as required in 

subsection (c)(1)(E); 

(ii) repeated issuance of permits by the State which 

do not meet the requirements of subsection (c); 

(iii) failure of the State to comply with the public 

participation requirements of this section; or 

(iv) failure of the State to implement corrective action 

requirements as described in subsection (c)(2)(B); and 

(C) whether the enforcement of a State coal combustion 

residuals permit program fails to comply with the requirements of this section because of— 

(i) failure to act on violations of permits, as identified by the State; or 

(ii) repeated failure by the State to inspect or otherwise determine compliance pursuant to the process 

identified in subsection (b)(2)(B)(iii)(I). 

(e) IMPLEMENTATION BY ADMINISTRATOR.— (1) FEDERAL BACKSTOP AUTHORITY.—The Administrator shall 

implement a coal combustion residuals permit program for a 

State only if— 

(A) the Governor of the State notifies the Administrator 

under subsection (b)(1) that the State will not adopt and 

implement a permit program; 

(B) the State has received a notice under subsection (d) 

and the Administrator determines, after providing a 30-day 

period for notice and public comment, that the State has 

failed, by the deadline identified in the notice under subsection (d)(3)(B), to remedy the deficiencies detailed in the 

notice under subsection (d)(3)(A); or 

(C) the State informs the Administrator, in writing, that 

such State will no longer implement such a permit program. 

(2) REVIEW.—A State may obtain a review of a determination 

by the Administrator under this subsection as if the determination was a final regulation for purposes of section 7006. 

(3) OTHER STRUCTURES.—For structures that receive coal 

combustion residuals on or after the date of enactment of this 

section located on property within the exterior boundaries of a 

State that the State does not have authority or jurisdiction to 

regulate, the Administrator shall implement a coal combustion 

residuals permit program only for those structures. 


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

combustion residuals permit program for a State under paragraph (1) or (3), the permit program shall consist of the requirements described in subsection (c). 

(5) ENFORCEMENT.— 

(A) IN GENERAL.—If the Administrator implements a coal 

combustion residuals permit program for a State under 

paragraph (1)— 

(i) the authorities referred to in section 4005(c)(2)(A) 

shall apply with respect to coal combustion residuals 

and structures for which the Administrator is implementing the coal combustion residuals permit program; 

and 

(ii) the Administrator may use those authorities to 

inspect, gather information, and enforce the requirements of this section in the State. 

(B) OTHER STRUCTURES.—If the Administrator implements a coal combustion residuals permit program under 

paragraph (3)— 

(i) the authorities referred to in section 4005(c)(2)(A) 

shall apply with respect to coal combustion residuals 

and structures for which the Administrator is implementing the coal combustion residuals permit program; 

and 

(ii) the Administrator may use those authorities to 

inspect, gather information, and enforce the requirements of this section for the structures for which the 

Administrator is implementing the coal combustion residuals permit program. 

(6) PUBLIC PARTICIPATION PROCESS.—If the Administrator implements a coal combustion residuals permit program for a 

State under this subsection, the Administrator shall provide a 

30-day period for the public participation process required in 

paragraphs (1)(F)(i), (4)(C)(i), and (4)(E)(ii)(IV) of subsection 

(c). 

(f) STATE CONTROL AFTER IMPLEMENTATION BY ADMINISTRATOR.— 

(1) STATE CONTROL.— 

(A) NEW ADOPTION, OR RESUMPTION OF, AND IMPLEMENTATION BY STATE.—For a State for which the Administrator 

is implementing a coal combustion residuals permit program under subsection (e)(1)(A), or 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, after providing a 30-day period for notice and public comment, that the State 

coal combustion residuals permit program meets 

the requirements described in subsection (c); and 


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(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 only the deficiencies detailed in the notice pursuant to subsection (d)(3)(A); and 

(ii) receiving from the Administrator— 

(I) a determination, after providing a 30-day period for notice and public comment, 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. 

(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 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.—Program requirements of, and 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 program requirements, actions, and orders 

until such time as— 

(i) the implementing agency changes the requirements of the coal combustion residuals permit program 

with respect to the basis for the action or order; or 

(ii) the State or the Administrator, whichever took 

the action or issued the order, 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)(1) for such 

State. 

(g) EFFECT ON DETERMINATION UNDER 4005(c) OR 3006.—The Administrator shall not consider the implementation of a coal combusVerDate Mar 15 2010 23:03 Jul 12, 2013 Jkt 029006 PO 00000 Frm 00054 Fmt 6659 Sfmt 6603 E:\HR\OC\HR148.XXX HR148

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tion 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) 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 subsections (d) 

and (e) and section 6005, 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 as affecting the authority of the Administrator 

under section 7003 with respect to coal combustion residuals. 

(C) 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 enforcement assistance requested. 

(D) CONCURRENT ENFORCEMENT.—Except as provided in 

subparagraph (C), the Administrator shall not have concurrent enforcement authority when a State is implementing a 

coal combustion residuals permit program, including during any period of interim operation described in subsection 

(c)(3)(D). 

(E) OTHER AUTHORITY.—The Administrator shall not 

have authority to finalize the proposed rule published at 

pages 35128 through 35264 of volume 75 of the Federal 

Register (June 21, 2010). 

(F) OTHER RESPONSE AUTHORITY.—Nothing in this section shall be construed as affecting the authority of the Administrator under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 

9601 et seq.) with respect to coal combustion residuals. 

(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. 

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

permit program implemented by the Administrator under subsection 

(e) shall not apply to the utilization, placement, and storage of coal 

combustion residuals at surface mining and reclamation operations. 

(j) 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 


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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 all of 

the authorities, activities, and procedures that comprise the system of prior approval and conditions implemented by or for a 

State to regulate the management and disposal of coal combustion residuals. 

(3) CODE OF FEDERAL REGULATIONS.—The term ‘‘Code of Federal Regulations’’ means the Code of Federal Regulations (as in 

effect on the date of enactment of this section) or any successor 

regulations. 

(4) IMPLEMENTING AGENCY.—The term ‘‘implementing agency’’ 

means the agency responsible for implementing a coal combustion residuals permit program for a State, which shall either be 

the lead State implementing agency identified under subsection 

(b)(2)(B)(i) or the Administrator pursuant to subsection (e). 

(5) PERMIT; PRIOR APPROVAL AND CONDITIONS.—Except as 

provided in subsections (b)(3) and (g), the terms ‘‘permit’’ and 

‘‘prior approval and conditions’’ mean any authorization, license, or equivalent control document that incorporates the requirements of subsection (c). 

(6) 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). 

(7) STRUCTURE.— 

(A) IN GENERAL.—Except as provided in subparagraph 

(B), the term ‘‘structure’’ means a landfill, surface impoundment, or other land-based unit which receives, or is 

intended to receive, coal combustion residuals. 

(B) DE MINIMIS RECEIPT.—The term ‘‘structure’’ does not 

include any land-based unit that receives only de minimis 

quantities of coal combustion residuals if the presence of 

coal combustion residuals is incidental to the material 

managed in the unit. 

* * * * * * * 


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DISSENTING VIEWS BY REPRESENTATIVE JOHN D. 

DINGELL 

This is a poor piece of legislation that does nothing to address 

the underlying issue of coal combustion residual disposal or beneficial reuse through recycling. It is not ready for primetime and 

stands the traditional way in which we have dealt with the affairs 

of EPA on its ear. The minority side is prepared to work with our 

Republican friends to write a good bill. It is easily possible for this 

committee to write such a piece of legislation. However, the majority has decided to recycle language from the Senate that the Senate 

admits needs significant revisions. 

By allowing states to each create their own program, what we’re 

doing is setting up so we’ll have some more fine spills of this nasty 

stuff. The spill in Wisconsin into Lake Michigan demonstrated that 

a spill in one state has the potential to affect neighboring state. 

This legislation does nothing to address the issue of legacy coal ash 

retention ponds that would not be covered by this bill nor does it 

provide adequate protections to sources of ground or surface water. 

Like other environmental laws and regulations that have been in 

effect for decades, we need a national standard to ensure that 

treasures such as the Great Lakes and our scenic waters are safe 

from these spills. 

I understand this is an issue that must be addressed. The regulations proposed by EPA may prevent the beneficial use and recycling of coal ash and would hinder not only utilities but also the 

construction industry. However, as much as I want there to be momentum to move a solution forward, I do not believe this legislation 

does enough to address the above concerns. The minority would be 

glad to work and we’re glad to help the majority, but we certainly 

don’t want to be embarrassed by putting anything like this on the 

House floor and then telling people how it’s going to help because 

I know, as sure as God made green apples, that we’re going to see 

very shortly that people are going to be denouncing this legislation. 

JOHN D. DINGELL. 


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1 House Committee on Energy and Commerce, Full Committee Markup of H.R. 2218, the ‘‘Coal 

Residuals Reuse and Management Act of 2013;’’ H.R. 2226, the ‘‘Federal and State Partnership 

for Environmental Protection Act of 2013;’’ H.R. 2279, the ‘‘Reducing Excessive Deadline Obligations Act of 2013;’’ and H.R. 2318, the ‘‘Federal Facility Accountability Act of 2013,’’ 113th Cong. 

(Jun. 19, 2013). 2 Environmental Council of the States, Resolution 00–1, On Environmental Federalism, Revised Mar. 20, 2012 (online at www.ecos.org/section/policy/resolution). 

DISSENTING VIEWS BY REPRESENTATIVES HENRY A. 

WAXMAN AND PAUL D. TONKO 

The Coal Residuals Reuse and Management Act of 2013 would 

abandon the proven models of environmental protection and adopt 

an approach that we have every reason to believe would fail to protect human health and the environment if enacted. This proposal 

will not ensure that coal ash is disposed of safely, that groundwater is protected from contamination, that air pollution is adequately controlled, or that catastrophic dam failures are prevented. 

THE BILL DOES NOT INCLUDE A STANDARD OF PROTECTION

The Resource Conservation and Recovery Act (RCRA) was enacted to protect public health and the environment from unsafe disposal of solid waste. It created duties reserved to the EPA and programs that could be delegated to the states. 

Like other environmental statutes, Congress required state delegation under RCRA to be held to a federal standard of protection. 

For instance, the law requires that state programs governing municipal solid waste ‘‘protect human health and the environment.’’ 

These standards are the yardsticks by which it is determined 

whether a state’s efforts are adequate, and they ensure a consistent 

level of effort and protection throughout the nation. During the full 

committee markup of this bill, it was clearly stated by majority 

counsel that the standard of protection in RCRA would apply to all 

wastes under RCRA with the exception of coal ash.1

Standards of protection are important because they ensure that 

every American family enjoys a basic level of protection. They prevent a race to the bottom among the states in which a state willing 

to have the laxest protections becomes the dumping ground for 

neighboring states. And they prevent the unfairness of one state allowing a facility within its borders to contaminate an adjacent 

state. 

The states have recognized the value of federal standards of protection. According to the Environmental Council of the States, 

‘‘EPA provides great value in achieving protection of human health 

and the environment by fulfilling numerous important functions, 

including; establishing minimum national standards [and] ensuring 

state-to-state consistency in the implementation of those national 

standards.’’ 2

Although the majority claims in the Committee report that the 

bill establishes a federal standard of protection by setting some 


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3 Congressional Research Service, Response to Committee Questions on Coal Ash Recycling and 

Oversight Act of 2013 (Jun. 4, 2013). 4 Id. 

5 U.S. Environmental Protection Agency, Hazardous and Solid Waste Management System; 

Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities, 75 Fed. Reg. 35128 at 35143 (Jun. 21, 2010). 6 Id. at 35146. 

‘‘minimum requirements,’’ these minimum requirements do not ensure human health or the environment will be protected. Moreover, 

this use of the term ‘‘federal standard’’ is inconsistent with the historical use of the term in environmental policy and with the commonly understood definition of the term. The nonpartisan Congressional Research Service (CRS) has examined the legislation and 

found that it does not establish a federal standard of protection in 

the way that term has ever been used.3 By having a set of minimum requirements that are open to state interpretation, the bill 

does not create a nationally consistent level of protection. 

Specifically, the Congressional Research Service has found that 

nothing in the bill ‘‘requires agencies implementing the permit program to establish criteria applicable to [coal ash] structures that 

will be those necessary to achieve a specific federal standard of protection.’’ 4

The proponents of this legislation have been fiercely opposed to 

ensuring that state programs protect public health and the environment. A democratic amendment offered at the full committee 

markup to hold state coal ash programs to the same legal standard 

of protection as other wastes under RCRA was defeated in a party 

line vote. 

If enacted, this legislation will not ensure a consistent national 

standard to protect against the risks of unsafe coal ash or guarantee that state programs will be protective. 

COAL ASH POSES SERIOUS RISKS TO HUMAN HEALTH AND THE

ENVIRONMENT

The Environmental Protection Agency (EPA) has documented 

groundwater contamination from coal ash disposal in 12 states and 

documented potential groundwater contamination from coal ash in 

17 states.5 These are coal ash disposal sites where poor disposal 

practices are contaminating ground water, polluting surface water 

and harming property values.6 In fact, three of those sites are now 

on the National Priority List for cleanup under Superfund. According to public interest stakeholders, the numbers of damage cases 

are much higher. 

Risks from uncontrolled dust have also been documented. In 

Gambrills, Maryland, toxic dust from a coal ash disposal site blew 

into neighboring homes posing threats to the community’s respiratory health. 

Coal ash impoundments can also catastrophically fail as happened in Kingston, Tennessee. EPA is currently conducting inspections of existing coal ash impoundments for structural integrity 

issues. At this time, 28% of impoundments inspected have received 

a ‘‘poor’’ rating. Those receiving poor ratings include 11 dams that 

have been rated ‘‘high-hazard’’ because their failure will likely lead 


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7 U.S. Environmental Protection Agency, Coal Combustion Residuals Impoundment Assessment Reports (online at www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/). 8Letter from Suzanne Rudzinski, Director of the Office of Resource Conservation and Recovery, U.S. Environmental Protection Agency to Pamela Faggert, Vice President and Chief Executive Officer, Dominion Resources Services (Jan. 7.2011) (online at www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/dom-chesa-power-request.pdf). 9 U.S. Environmental Protection Agency, Hazardous and Solid Waste Management System; 

Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities, 75 Fed. Reg. 35128 at 35144 (Jun. 21, 2010). 

to the loss of human life.7 At least one impoundment, Dominion’s 

Chesapeake Energy Center in Chesapeake, Virginia, was required 

to address ‘‘urgent’’ recommendations, which EPA said, ‘‘require 

immediate attention to ensure the structural integrity of the impoundment in the near term.’’ 8

These risks are real, but unfortunately H.R. 2218 will not meaningfully address them. 

THE MINIMUM CRITERIA ARE NOT SUFFICIENT TO PROTECT HUMAN

HEALTH AND THE ENVIRONMENT

The majority’s Committee report states that the minimum requirements set out in the bill will be protective of human health 

and the environment. However, the requirements do not include 

the criteria necessary to protect human health and the environment from the risks of coal ash. 

For example, the bill does not require existing impoundments 

that continue receiving coal ash after enactment to be retrofitted 

with simple liners. Preventing groundwater contamination is more 

effective and cheaper than cleaning it up, but the bill does not require this simple safeguard to prevent contamination. 

Inexplicably, the legislation doesn’t require an impoundment to 

control pollution until 10 years after groundwater contamination 

has been documented. Even then the legislation allows the impoundment to get additional deadline extensions or to avoid the requirement altogether by closing. 

Protecting human health and the environment would require 

preventing groundwater contamination, not allowing it to continue 

for ten or more years after it is documented. 

According to EPA, its most recent risk assessment for coal ash 

found ‘‘very high potential risks from unlined surface impoundments’’ including cancer and noncancer risks to the public and significant risks to the environment.9

Representative Waxman offered an amendment during Committee consideration to require state programs to include measures 

to prevent groundwater contamination, but the amendment was defeated in a nearly party line vote. 

THE BILL LACKS FEDERAL BACKSTOP ENFORCEMENT AUTHORITY

This legislation lacks provisions to ensure that states enforce the 

permit programs for disposal of coal ash they put in place. That 

means that when a state fails to implement their program for coal 

ash disposal in a way that protects human health and the environment, there is no effective way for the EPA to intervene to ensure 

the necessary safeguards. 

This limitation diverges from the proven model of environmental 

delegation. According to a recent report by the Congressional ReVerDate Mar 15 2010 23:03 Jul 12, 2013 Jkt 029006 PO 00000 Frm 00060 Fmt 6604 Sfmt 6602 E:\HR\OC\HR148.XXX HR148

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10 Congressional Research Service, Federal Pollution Control Laws: How are They Enforced? 

(Jun. 18, 2013) (RL34384). 11 U.S. Environmental Protection Agency, Office of Inspector General, EPA Must Improve 

Oversight of State Enforcement (Dec. 9, 2011) (12–P–0113) (online at www.epa.gov/oig/reports/ 

2012/20111209-12-P-0113.pdf). 12 Id. 

search Service, in states that have been delegated implementation 

of federal pollution control laws, ‘‘EPA retains the authority and responsibility as determined by each statute to take enforcement 

measures, generally taking action when there is a violation of an 

EPA order or consent decree, or when the federal government 

deems a state to have failed to respond to a major violation in a 

timely and appropriate’ manner.’’ 10 CRS concluded that this legislation fails to include these provisions. Instead, under this bill, if 

a state fails to do an adequate job of enforcing its program, EPA 

has only one remedy. EPA can take over a state program when the 

state has failed to remedy deficiencies in its program by a reasonable deadline set in collaboration with the state. However, such a 

takeover is highly unlikely to be taken in all but the most extreme 

circumstances and should offer little comfort to a community facing 

contamination in state where the state refuses to meaningfully act. 

There are current examples of states failing to act to protect 

their citizens from unsafe and unpermitted releases. For example, 

in Labadie, Missouri, the state has known for over two decades of 

a leak that has been gushing 50,000 gallons of toxic coal waste a 

day, and yet nothing has been done about it. In 2011, the EPA Inspector General found that ‘‘state enforcement programs frequently 

do not meet national goals and states do not always take necessary 

enforcement actions.’’ 11 Additionally, the IG found that ‘‘state enforcement remains inconsistent across the country, providing unequal environmental benefits to the public and an unlevel playing 

field for regulated industries.’’ 12

Representative Rush offered an amendment during Committee 

consideration to allow federal backstop enforcement authority, but 

the amendment failed on a party line vote. 

THE BILL WILL NOT PROTECT VULNERABLE POPULATIONS

Coal ash contains toxic chemicals, including arsenic, lead, 

hexavalent chromium, and mercury. These and other chemicals 

pose a particular risk to certain vulnerable populations, including 

children, pregnant women, and workers. 

Additionally, low-income communities and communities of color 

shoulder a disproportionate share of the health risks from disposal 

of coal combustion waste, as with so many environmental issues. 

Almost 70% of coal ash impoundments in the United States are in 

areas where household income is lower than the national median. 

For example, in Louisa, Kentucky, where the Big Sandy coal ash 

storage site is located, more than 29% of the community lives below 

the poverty line. 

When the Tennessee Valley Authority coal ash impoundment in 

Kingston, Tennessee, failed, it released 5.4 million cubic yards of 

toxic sludge, blanketing the Emory River and 300 acres of surrounding land, and creating a Superfund site that could cost up to 

$1.2 billion to remediate. The sludge from that spill was removed 


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and disposed of in a municipal solid waste landfill in Uniontown, 

Alabama, where 45% of the population falls below the poverty line. 

Several homes are within 100 feet of the landfill where the 

dumping occurred. The local residents protested the decision, but 

they were unable to stop the dumping. Dust from the ash was not 

controlled, and it contaminated their homes, gardens and property. 

Sulfurous gases blew off the landfill, making people sick. Residents 

have experienced respiratory illness, headaches, dizziness, nausea, 

and vomiting. Runoff from the landfill into residential areas has 

shown arsenic levels 80 times the level allowed under the Safe 

Drinking Water Act. 

Now, the company that operated the landfill has declared bankruptcy, and this community will be unable to recover damages for 

the harms they have suffered. 

Coal ash disposal sites directly impact the health, livelihood, and 

home values for communities living around these dump sites, but 

the bill does nothing to ensure that these communities are protected from disproportionate adverse impacts. An amendment offered by Representative Christensen to require that state coal ash 

permit programs protect vulnerable populations including hot-spot 

communities was defeated in a nearly party line vote. 

CHANGES IN THE MOST RECENT VERSION DO NOT ADDRESS THESE

ISSUES

This bill is based on the proposal that 90% of Democrats opposed 

when it was considered on the House floor in September of last 

year. It has been exhaustively analyzed by the Congressional Research Service and found severely wanting. And it has failed to get 

sufficient support in the U.S. Senate. 

The bill reported from the Committee includes a number of small 

changes from the original discussion draft, none of which were 

drafted with the input of the Democratic members of the Committee. Some have little substantive effect. Some represent modest 

improvements. And some make the proposal even more problematic. 

For instance, the legislation appears to clarify that EPA cannot 

find a state coal ash disposal program to be deficient on the basis 

that the state program is allowing public health to be harmed or 

groundwater to be contaminated. This clarification makes the legislation even more unworkable than the version considered during 

the last Congress and exacerbates the issues identified in previous 

versions of the legislation. 

For the reasons stated above, we dissent from the views expressed in the Committee’s report. 

HENRY A. WAXMAN. 

PAUL D. TONKO. 

Æ 


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